Inherent Power of HCD

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 analyses 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.

Section-561A: Saving of inherent power of High Court Division.

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.

Section analysis:

This section corresponds to section 151 C.P.C is and proceeds on the same principle. This
section emphases that the Supreme Court in its High Court Division has the widest
Jurisdiction to pass orders to secure ends of justice and for that purpose to entertain
application not contemplated by the Code. The inherent power can be exercised only for
either of the three purposes mentioned in the section.

It cannot be invoked in respect of any matter covered by the specific provisions of the Code.
The inherent power of the court is undefined and indefinable and must therefore be exercised
with great caution. The paramount consideration in exercising the power under section 561A

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is that such an order would prevent the abuse of the process of any court or otherwise it
would secure the ends of justice.

Normally the inherent jurisdiction should not be invoked, because inherent powers are
preserved in extraordinary cases in the interest of justice. The expression "abusing the
process of the court" is generally applied to a proceeding which is wanting in bonafide and is
frivolous, vexatious or oppressive. The inherent jurisdiction of the High Court Division may
be exercised to quash proceedings in a proper case either to prevent the abuse of the process
of any court or otherwise to secure the ends of justice.

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

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.  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, 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.

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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:

 According to Section 422 of Code of Criminal Procedure, where an appeal is required

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 without giving notice, then the High Court Division can make an order under Section
561A to give effect to that order under this Code.
 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.

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:

In the case A.T. Mridha vs. State, 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 –

In the case Abdur Rahman Dhali and others vs. State, 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 accused’s, they (accused’s) 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.

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

 The jurisdiction is completely discretionary. The High Court can refuse to use the
power.
 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).
 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.
 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.
 The High Court has the power to provide relief to the accused even if s/he has not
filed a petition under section 561A.
 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.
 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.
 Inherent power u/s 561A can only be exercised by the High Court Division alone and
not by Session judges or other subordinate Courts.
 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.
 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.
 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.

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  In the case Abdul Karim vs. State, 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

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:

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.

 When any complaint is required to be proved by evidence, then such proceeding

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.

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