Section 561A
The power vested under section 561A of the Code can be exercised for the purposes specified
therein, namely
(a) to give effect to any order under the Code or
(b) to prevent abuse of the process of a court, or
(c) to secure ends of Justice.
The inherent jurisdiction of the High Court U/S. 561A Cr.P.C. is the legislative recognition of the
inherent power and this power exists so long the High Court exists and this power is available for
ancillary and auxiliary purposes for doing justice.1- Government of Bangladesh vs. AT Mridha.
Section 561A does not confer a new power upon the High Court. All that this section does is that
it declares that such inherent powers as the High Court may possess have not been taken away or
abridged by any of the provisions of the Code of Criminal Procedure. Its inherent powers are much
controlled by principle and precedent as are its expressed powers conferred under the statute. The
High Court cannot exercise its Inherent power unless it is absolutely necessary for carrying out the
other provisions of the Code or for doing Justice that is, to prevent abuse of the process of any
court or otherwise to secure the ends of Justice.2- Bangladesh vs. Tan Kheng Hock
The power to be exercised under section 561A CrPC is highly discretionary and extra ordinary.
The persons who have themselves disrespected the Court’s lawful order cannot get any
discretionary relief from High Court Division.3
561A in Inquiry
In exercising the jurisdiction under section 561A the High Court would not embark upon an
enquiry as to whether the evidence in question is reliable or not. That is the function of the trial
Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent
jurisdiction and contend that on a reasonable appreciation of the evidence, the accusation made
against the accused would not be sustained.4 - Abdul Quader Chowdhury vs. State. In exercise of
the power under section 561A Cr. P.C. this Court cannot convert itself into a trial Court and embark
upon an inquiry to find out the veracity of various such new statements made by the accused. 5-
MG Towab vs. State. This power cannot be so utilized as to interrupt or divert the ordinary course
of criminal procedure as laid down in the Code.
561A after Revision
A party who has been unsuccessful in revision before the Sessions Judge under section 439A CrPC
is not debarred from invoking the jurisdiction of the High Court Division under section 561A
thereof. The inherent jurisdiction of the High Court Division will be available even to a party who
1
Government of Bangladesh vs. AT Mridha
2
Bangladesh vs. Tan Kheng Hock
3
AK Khan vs. Chairman, 2nd Labour Court
4
Abdul Quader Chowdhury vs. State
5
MG Towab vs. State
has lost in revision before the Sessions Judge under section 439A. But the jurisdiction under
section 561A cannot be invoked for the purpose of examining the correctness, legality or propriety
of any finding, sentence or order recorded or passed by any inferior Criminal court which is done
in exercise of revisional jurisdiction under sections 435/ 439/ 439A CrPC. A revision petition
cannot be brought before the High Court Division in the camouflage of a petition under section
561A CrPC. It will be, therefore, in a very rare case that the High Court Division will be called
upon to exercise its jurisdiction under section 561A when the party has already exhausted the
remedy of a revision.6- Aminul Islam vs. Mujibur Rahman
It may be mentioned here that Section 561A has been put under Chapter XLVI of the Code as
"Miscellaneous"; so, an application under this Section must be registered as a Miscellaneous Case
and not as a Revision Case under Section 439(1) or under both the Sections. Registering such an
application under Sections 439/ 561A sometimes creates confusion.7- Sher Ali (Md) and ors vs
State.
The High Court Division neither can sift the evidence like the court of appeal nor can assess the
evidence in order to give any benefit of doubt even if he is entitled in exercising the power under
section 561A of the Code.8
A person accused in a criminal case can only prefer an application under section 561A for quashing
the said proceeding if he becomes previously unsuccessful in his application either under section
265C or 241A, otherwise his application under section 561A shall be premature.9- Latifa Akhter
and others vs. State
No application where available remedy exists
The inherent jurisdiction should not be invoked where some other remedy is available. The
jurisdiction given by section 561A is neither an alternative jurisdiction nor an additional
jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which
no other procedure is available or has been provided by the Code itself. This power cannot be so
utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the
Code.10- Abdul Quader Chowdhury vs. State
A relief under section 561A of the Code should not be made available to a litigant when other
remedies are available to him under the provisions of the CrPC.11- Maksudur Rahman Hilaly vs.
State. In the absence of any other remedy available to the aggrieved person if it is found necessary
to secure the ends of justice but such power should be very sparingly exercised and in so doing the
gravity of the offence charged and the term of sentence can be taken into consideration.12 - Sohail
Ahmed Chowdhury vs. State
6
Aminul Islam vs. Mujibur Rahman
7
Sher Ali (Md.) and others vs. State
8
Delower Hossain @ Ali Hossain Bhuiyan vs. State
9
Latifa Akhter and others vs. State
10
Abdul Quader Chowdhury vs. State
11
Maksudur Rahman Hilaly vs. State
12
Sohail Ahmed Chowdhury vs. State
Quashment
To quash a judicial proceeding in order to secure the ends of justice would involve a finding that
if permitted to continue, the proceeding would defeat the ends of justice, or, in other words, would
either operate or perpetuate an injustice. The HCD may quash the proceedings on the ground that
they are mala fide and constitute an abuse of the process of the Court.13 Fresh trial of the petitioner
for the negligence of the presiding officer concerned would be an unnecessary harassment to him
and an abuse of the process of the court.14
By taking resort to extraordinary provisions under section 561A which is auxiliary or ancillary
powers, the High Court can quash the proceeding.
When and under what circumstances the said jurisdiction can and should be exercised by
the High Court15
The power to quash a proceeding under this section being in its nature extraordinary, it should be
exercised sparingly, carefully and only where such exercise is justified to prevent the abuse of the
process of the court and to do the real and substantial justice for the administration of which alone
the court exists.
It is not possible, desirable or expedient to lay down any inflexible rule which should govern the
exercise of this inherent jurisdiction. The exercise of this jurisdiction will depend upon the facts
and circumstances of each case.
▪ No prima facie case: where the allegations in the FIR or the complaint even if they are
taken at their face value and accepted in their entirely, do not constitute the offence alleged,
in such cases no question of appreciating evidence arises, it is a matter merely of looking
at the complaint or the FIR to decide whether the offence alleged is disclosed or not.
▪ Legal bar: If there is any legal bar (i.e.; double jeopardy) against the institution or
continuance of the said proceedings the High Court would be justified in quashing the
proceedings on that ground.
▪ No legal evidence: In cases falling under this category the allegations made against the
accused person do constitute an offense alleged but there is either no legal evidence
adduced in support of the case or the evidence adduced clearly, or manifestly fails to prove
the charge.
▪ Inordinate delay in the trial: Mere delay in trial is not sufficient to establish abuse of the
process of the court. When, however, a case drags on for years together, for no fault of the
accused and the delay in the trial is shocking to the very basis of justice, proceeding may
be quashed. The circumstances connected with the delay will have to be examined in each
case to determine whether the delay constitutes an abuse of the process of the court, or
not.16
▪ Groundless or preposterous fact: A proceeding is liable to be quashed when the allegation
upon which it is based is on the face of it groundless or so preposterous that no man of
13
Government of Bangladesh vs. AT Mridha
14 Adhir Kumar Shaha vs. State
15
Abdul Quader Chowdhury vs. State
16
Md. Shafique Ullah vs. State
ordinary prudence will take any notice of it. It is true that criminal prosecution should not
be stifled but when a prosecution is arising out of ill motive or improper motive the
machinery of administration of justice need not be available to such complainant and it is
imminently for such situation the inherent power has been conferred on the Court for
quashing the proceeding.17
▪ Delay in lodging complaint: A criminal prosecution is not like a civil matter, where law of
limitation applies. Limitation does not apply to criminal prosecution. When the State
initiates prosecution for a criminal offence, such prosecution is to be deemed to have been
commenced and continued in the public interest, as a duty of the State, and this is not to be
lightly interfered with under s.561 Cr. P. C. Mere delay in lodging a complaint is not a
ground for quashing a proceeding. For there are circumstances in which lodging of any
information as to the commission of an offence may be delayed Code of Criminal
Procedure.
▪ Abuse of process: There may be cases where it may be possible that the institution or
continuance of criminal proceedings against an accused person may amount to the abuse
of the process of the Court or that the quashing of the impugned proceedings would secure
the ends of justice.
▪ Quashing at initial stage: Quashing of proceedings at so early stage gives an unfortunate
impression of stifling of criminal prosecutions by exercise of an extraordinary power which
is given for the dispensation of complete justice, in the forms provided by law. Interference
even at an initial stage may be justified where the facts are so preposterous that even on
the admitted facts no case can stand against the accused and that a further prolongation of
the prosecution would amount to harassment to an innocent party and abuse of the process
of the Court.
A Criminal proceeding cannot be quashed on the basis of defence materials which are still not part
of the materials for the prosecution; those are the defences of the respondent which he has a right
to adduce if and when a charge is framed against him and if he has to face the trial.18 Mere plea of
right of private defence cannot be a ground for quashing the criminal proceeding. Where disputed
facts are involved, evidence will be necessary to determine the issue.19
Quashment of conviction:
The inherent power under section 561A can be invoked at any stage of the proceeding and even
after conclusion of trial, if it is necessary to secure ends of justice. This power may be exercised
to quash a proceeding or even a conviction on conclusion of a trial if -
✓ the Court concerned got no jurisdiction to hold the said trial or
✓ the facts alleged against the accused do not constitute any criminal offence, or
✓ the conviction has been based on 'no evidence ' or
✓ otherwise to secure ends of justice.20
17
Md. Shamsuddin alias Lambu vs. State
18
Rahela Khatun vs. Abul Hassan
19
SM Khalilur Rahman vs. State
20
Sher Ali (Md.) and others vs. State
If the conviction is based on no evidence at all and thus there is an apparent error on the face of
the record, the conviction order can be quashed.21
Whether the High Court Division under section 561A of the Code of Criminal Procedure has
the power to quash the proceeding before the Special Tribunals22
The expression used in section 561A is "any court." This expression by itself, if properly
interpreted would mean a criminal court as distinguished from a Court which is not criminal.
Neither this expression nor anything else in Section 561A gives any indication that a Court has to
be sub-ordinate to the High Court Division so that it may exercise jurisdiction over that court under
that section.
It is not however clear from which expression or words used in section 561A the Court found the
requirement of subordination of a Criminal Court constituted under a special statute, of the High
Court Division so that it may exercise jurisdiction over such Court under section 561A.
So far as the question of sub-ordination of the Special Tribunal to the High Court Division is
concerned, this is the constitutional set-up as laid dawn in Article 114 of the Constitution. This
Article read with Article 115 and 116 of the Constitution makes all other Courts and Tribunal,
which may be established by or under any legislation, sub-ordinate to the High Court Division.
Also, as the High Court Division has; under Article 102 of the Constitution, the power to interfere
with the proceedings of such Tribunals, it cannot be said that they are not subordinate to the High
Court Division.
Whether the Court was justified in using the power to quash the police Investigation23
It must be clearly understood that the terms of section 561A of the Code do not extend the
Jurisdiction of the High Court to matters which are not inherently with that Jurisdiction. The High
Court also cannot claim Inherent Jurisdiction to exercise powers taken away by legislation.
The Inherent Jurisdiction under section 561A of the Code cannot be extended to interfere with
investigation. The court in Government of Bangladesh Vs. A.T. Midha agreeing with the view taken
by the Supreme Court of India in State of West Bengal v. S.N. Basak and the Supreme Court of
Pakistan in M.S. Khawaja V. State set aside the judgment and order of the High Court Division
quashing the proceedings in the Investigation stage.
Quashment of a criminal proceeding before commencement of trial would amount to stifling the
proceedings before the prosecution got an opportunity to bring evidence in support of the
accusations.
However, if we draw our attention wholistically, this inherent power of the High Court can be
exercised in an appropriate case, even at the Investigating stage when no offence of any kind is
disclosed, and the police could have no authority to undertake an investigation.
Interference even at an initial stage may be justified where the fact is so preposterous that even on
the admitted facts no case can stand against the accused and that a further prolongation of the
21
Subal Chandra Saha vs. IMS Huq
22
Salimuddin Ahmed vs. State
23
Bangladesh vs. Tan Kheng Hock
prosecution would amount to harassment to an innocent party and abuse of the process of the
Court.24
Any application being a repetition of the same and similar prayer for quashment of the proceeding
made in the application once rejected entertainment of the same application will not tantamount to
review of its earlier order by the High Court, when it is found that a criminal case is dragged on
for an unusually long period, the High Court has definitely the jurisdiction under the changed
circumstances to entertain the second application to pass an appropriate order for securing the ends
of justice.25
24
Abdul Quader Chowdhury vs. State
25
AKMM Saleh vs. State
