Inherent Power of High Court Division in Bangladesh : A Critical Analysis with Case Laws

Abstract

In the criminal adjudication system, the inherent power of the High Court Division over the subordinate Courts is an exclusive jurisdiction and discretionary in nature, which the High Court Division can exercise alone for the administration of justice. Unlike the other provisions of the law, inherent power of the High Court Division is not created by inserting the provision in any enactments or laws. It exists in the High Court Division since its existence and Section 561A of the Code of Criminal Procedure (CrPC) merely saves it to recognize the same. When a proceeding seems to abuse the process of the Court or tends to produce serious injustice to either party, the High Court Division for the sake of justice exercises its inherent powers. Nevertheless, inherent power has some inherent limitations or restrictions for the protection against the abuse of this extra-ordinary jurisdiction of High Court Division, which have been developed by various case laws. In this work, I have striven to analyse and manifest through the case laws the unique features and applications of the inherent powers of High Court Division and most importantly the limitations of such powers to quash immature proceedings of subordinate Courts.

Keywords: Inherent power of the High Court Division, Unique features, Applications, Limitations, Quashing of Proceedings.

Introductory Remarks:

The inherent power of the High Court Division in the criminal adjudication system is an extraordinary power by which it ensures justice and prevents abuse of the process of court. Inherent powers are inherent in the High Court Division itself.  Inherent powers of the High Court Division have not been given by the Code of Criminal Procedure. Rather, this Code only saves the inherent power of High Court Division, because the High Court possesses inherent power since its birth before the enactment of this Code[1].  Hence, the heading of the Section 561A of the Code of Criminal Procedure is “Saving of inherent power of High Court Division”.

In the case Smt. Bhagwanti vs. Kedarnath  Kapur [2], the Court held that, inherent powers of the High Court is inherent by its birth and have not been conferred by the Code. These powers are independent of and in addition to any other powers that the Court may exercise under the Code.

The inherent power of the High Court Division is not exercised where express provisions of law are sufficient to give remedy. Similarly, the inherent power cannot be invoked in such a way that may amount to a conflict with express provisions of law.

In the criminal adjudication, when in a Court proceeding any law is violated which causes abuse of the process of court or causes injustice, the High Court Division shall invoke its inherent power to prevent such abuse and secure ends of justice.

Analysis of the provisions of the Section 561A of the Code of Criminal Procedure:

Section 561A says,

“Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 

If  we precisely explain the Section, we find the implication from its first portion “Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division” that no sections or provisions of the Code can limit, restrict or affect the inherent power of the High Court Division, because this Section has contained the word “Shall be” and therefore the inherent jurisdiction of the High Court Division is unique in nature which is exclusively exercised by the High Court Division.

The last portion of the Section – “to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice” basically indicates the very objects and necessity of the inherent power of  High Court Division. Inherent power can be exercised for the purposes specified therein, namely:

        a) To give effect to any order under this Code,

        b) To prevent abuse of the process of the Court, and

        c) To secure the ends of justice.

To give effect to any order under this Code:

When any order according to provision of the Code of Criminal Procedure have been required to be given effect for the sake of justice but have not been affected or denied in the subordinate court, then High Court Division by exercising its inherent power can affect such order for ensuring justice.

Some of instances make the view clearer:

1. According to Section 422 of Code of Criminal Procedure, where an appeal is required to be heard giving prior notice to the appellant or his/her counsel but was heard without giving notice, then the High Court Division can make an order under Section 561A to give effect to that order under this Code. [3]
2. Where mandatory provisions of the law have been overlooked, the Court has power to correct such an error though the case has already been decided. [4]

To prevent abuse of the process of the court:

When a Court makes any abuse of the process of Court violating any law which ultimately causes injustice to either party of the proceeding, then High Court Division can invoke its inherent power to prevent such abuse of the process of the Court.

Some of instances make the view clearer:

1. In the case Ram Krishan Nath vs. State[5], the Court held that after rejection of the prayer for further investigation by the tribunal, the charge-sheet is then submitted by the police in the second case accusing the accused petitioner on the self-same occurrence is malicious, calculated to victimize and harass the accused petitioner and further proceeding in the case will be an abuse of the process of the Court.
2. In the case A.T. Mridha vs. State [6], the High Court Division held that if after investigation lasting for five months, no sufficient materials are brought out to connect the arrested person with the offence alleged, such person is entitled to be released on bail and further detention will be abuse of the process of Court.

To secure the ends of justice:

The expression “ends of justice” in Section 565A of CrPC embraces wide jurisdiction of the High Court Division for ensuring justice. It covers within its purview the foregoing two purposes i.e. giving effect to any order under this Code and preventing abuse of the process of the court as well. In addition, it also implies that where there are lacunae of law or any provision of law has been violated, then the High Court Division by applying its inherent power shall secure the ends of justice.

Some instances of case laws where the High Court Division has applied its inherent power to secure the ends of justice are given below –

1. In the case Abdur Rahman Dhali and others vs. State [7], the Court held that when the allegations made in the first information report or petition of complaint or the charge-sheet are taken at their face value and accepted in their entirety and those allegations do not prima facie constitute any offence against the accuseds, they (accuseds) should not be compelled to face the trial which amount to abuse of the process of the Court and the same is to be prevented by invoking the inherent power of the Court.
2. In the case Monirul Islam vs. State [8] the Court held that upon a reading of the complaint and plaint of the suit it is obvious that the same allegations were before the criminal Court as well as before the civil Court and since there is a decree in civil Court as per decision of 14 DLR (SC) 14, 45 DLR (AD) 31 and 51 DLR (AD) 14, no criminal proceeding can be continued.

Unique Features and Applications of Inherent Powers of High Court Division:

1. The jurisdiction is completely discretionary. The High Court can refuse to use the power.
2. The jurisdiction is not limited to cases that are pending before the High Court. It can consider any case that comes to its notice (in appeal, revision or otherwise).
3. This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it.
4. The High Court, under section 561A, does not conduct a trial or appreciate evidence. The exercise of this power (although it has a wide scope) is limited to cases that compel it to intervene for preventing a palpable abuse of a legal process.
5. The High Court has the power to provide relief to the accused even if s/he has not filed a petition under section 561A.
6. This power cannot be exercised if the trial is pending before the apex court and it has directed the session judge to issue a non- bailable warrant for arresting the petitioners.
7. In proceedings instituted on complaint, exercise of inherent powers under Section 561A CrPC to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.
8. Inherent power u/s 561A can only be exercised by the High Court Division alone and not by Session judges or other subordinate Courts [9]. The Indian Supreme Court held in Bindeswari Prasad Singh [10] case that the subordinate Court had no inherent power and Section 561A conferred this power only to the High Court alone.
9. The Inherent power of the High Court Division u/s 561A is an extra-ordinary jurisdiction of the High Court which is unlike the powers given under Sections 435 and 439 of the Code.
10. The High Court Division neither as a Court of appeal nor a Court of revision exercises its inherent powers to prevent abuse of the warrant of Courts and to ensure the fair justice.
11. Only the High Court Division can quash a proceeding of the subordinate Courts by exercising its inherent jurisdiction where quashing is legally required u/s 561A of the Code of Criminal Procedure. In the case Kapil Deo Sukla vs. The State Of Uttar Pradesh [11], the Court held that when the trial is prolonged for 20 years and the circumstances are such that the accused would not get a fair trial, the High Court Division can rightly quash the proceeding by using its inherent power.
12. In the case Abdul Karim vs. State [12], the High Court Division held that a second application u/s 561A after a first application unsuccessful u/s 439A is perfectly valid. This is because such a second application u/s 561A does not amount to a second revision.

Limitations or Restrictions of Inherent Jurisdiction of High Court Division to Quash Proceedings and Orders of Subordinate Court:

Although there are no specific provisions in the Code regarding limitations or restrictions of inherent power, the Supreme Court in many cases ruled against the abuse of this extra-ordinary jurisdiction of High Court Division.

Some of the rulings are cited below:

1. Quashing is not possible before the commencement of a proceeding. The normal rules established by the Supreme Court is that unless a criminal proceeding has started, no application of quashing u/s 561A can be entertained and a criminal proceeding starts only after the cognizance has been taken by the Courts.
2. When any complaint is required to be proved by evidence, then such proceeding cannot be quashed. [13]
3. An accused cannot make an application for quashing case u/s 561A unless his discharge petition has been rejected or struck off u/s 241A or 265C of the Code of Criminal Procedure. [14]

Concluding Remarks:

It is quite clear that the inherent power of the High Court Division is the extra-ordinary jurisdiction which it inherits since its existence for the holistic purposes of administration of justice in criminal adjudication.

To maintain or achieve the very objects of inherent power, the High Court Division should scrutinize the application u/s 561A before exercising its inherent power. It is conspicuous from many landmark cases that where there are express provisions of law, there is no inherent power of the High Court Division to override them.

Footnotes: 

1. Halim, Abdul.MD, Code of Criminal Procedure, 7th Edition, October 2013, CCB Foundation, p. 203.
2. [1974] 77 PLR(D)5
3. 1962 BLJR 558
4. AIR 1950 All 625
5. 60 DLR (2008) 266
6. 23 DLR 335
7. 57 DLR (2005) 17
8. 60 DLR (2008) 59
9. PLD 1987 Lah 282
10. AIR 1977 SC 2432
11. AIR 1973 SC 494
12. 6 BCR 146
13. 59 DLR (2007) 586
14. 51 DLR (AD) 159