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2007 DIGILAW 36 (JK)

Mohd. Hashim Qureshi v. State Of J. &K.

2007-03-29

MANSOOR AHMAD MIR

body2007
1. Petitioner has filed this petition under section 561-A Cr. P. C. 1989( 1933 A. D), (for short code) for quashing of order dated 26.12.2002 passed by Special Judge (Sessions Judge), Srinagar incase FIR No. 1.5/1971, Police Station Saddar, Srinagar, under sections 365,392,435 and 120-B RFC and Section 3 of the Enemy Agents Ordinance Act, 2005 (1948 A.D), (hereinafter to be referred to as the Ordinance) on the grounds taken in the petition, which is on the board for the last four years. 2. Mr. Rathore, AAG, learned counsel for the respondents raised a preliminary objection that the petition is not maintainable in view of the bar contained in the Ordinance. He further argued that the Ordinance provides how to conduct trial and before whom orders passed by the Special Judge can be questioned. In support of his submissions, he referred to the provisions of section 3, 4, 7, 8, 9 and 14 of the Ordinance. 3. While rebutting the arguments of Mr. Rathore, Mr. Jan argued that this court is having inherent powers and is within its jurisdiction to quash the proceedings in accordance with law. 4. Heard learned counsel for the parties and considered the matter. 5. The crucial question which requires adjudication is whether this court is competent to exercise inherent jurisdiction in terms of Section 561-A of the Code in the given circumstances of the case? 6. In order to return a finding on this question, it profitable to notice section 561-A of the Code: "561-A. Saving of Inherent power of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court 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." 7. This provision specifically mandates that the High Court is within its powers to make such orders as may be necessary to give affect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is no-where provided in this provision of law that bar created by any statute or enactment will not limit or affect the inherent powers of the High Court. 8. The Apex Court in case titled Satya Narayan Sharma Vs. It is no-where provided in this provision of law that bar created by any statute or enactment will not limit or affect the inherent powers of the High Court. 8. The Apex Court in case titled Satya Narayan Sharma Vs. State of Rajasthan, (2001) 8 SCC 607, held that if any statute or enactment creates a bar for exercise of any jurisdiction, the inherent jurisdiction cannot be exercised to get over that bar. It is profitable to reproduce para 15 of the said judgment here under:-- "There is another reason also why the submission that Section 19 of the Prevention of Corruption Act would not apply to the inherent jurisdiction of the High Court, cannot be accepted. Section 482 of the Criminal Procedure Code starts with the words "Nothing in his Code". Thus the inherent power can be exercised even if there was a contrary provision in the Criminal Procedure Code. Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar, then inherent jurisdiction cannot be exercised to get over that bar. As has been pointed out in the cases of Madhu Limaya Vs. State of Maharashtra, Janata Dal vs. H. S. Chowdhary and Indra Sawhney vs. Union of India, the inherent jurisdiction cannot be resorted to if there was a specific provision or there is an express bar of law. " Same view was taken by the Andhra Pradesh High Court in case titled Durga Prasad, Chandra Chits Vs. Karri Sivannarayana, 2005 Cri. L. J. 2637 It was held that inherent powers should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. It was further held that this power cannot be exercised against an express bar in some other enactrnent. The Apex Court in yet another case titled State through Special Cell, New Delhi Vs. Navjot Sandhu, (2003) 6 SCC 641, has also taken the same view. It is profitable to reproduce para 29 of the said judgment hereunder:-- "...... Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". The Apex Court in yet another case titled State through Special Cell, New Delhi Vs. Navjot Sandhu, (2003) 6 SCC 641, has also taken the same view. It is profitable to reproduce para 29 of the said judgment hereunder:-- "...... Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other Provisions of the Criminal Procedure Code. However, as it set out in Satya Narayan Sharma case, this power can not be exercised if there is a statutory bar in some other enactment. If the order assailed in purely of an interlocutory character, which could be corrected in exercise of rev is ional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 9. Now the question which emerges for consideration is whether Ordinance creates such a bar and whether the Ordinance bars the inherent jurisdiction of this Court? 10. The object of the Ordinance was to create an offence to provide a mechanism for the punishment for these offences which is provided in sections 3 and 4 and the subsequent sub-sections. 11. Section 2 defines the "enemy" and "enemy agent". Section 4 provides which court is competent to try the offence (s) and what procedure is to be adopted. The object of the Ordinance was to create an offence to provide a mechanism for the punishment for these offences which is provided in sections 3 and 4 and the subsequent sub-sections. 11. Section 2 defines the "enemy" and "enemy agent". Section 4 provides which court is competent to try the offence (s) and what procedure is to be adopted. Section 9 provides how a conviction order can be challenged and before whom. Section 14 of the Ordinance expressly ousts the jurisdiction and interference of other course. It is necessary to notice section 9 and 14 of the Ordinance hereunder: -- "9. Review of convictions. -- (1) If, in any proceeding before a Special Judge. -- a) a person convicted is sentenced to death or to imprisonment for life, or b) though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person chosen by the Government from the Judges of the High Court and the decision of that person shall be final. 2) Where any proceedings are so submitted for review, the Judge reviewing the proceedings may exercise in his discretion any of the powers exercisable under section 439 of the Code of Criminal Procedure, 1989, by the High Court in the case of any proceedings which the said section 439 refers. Provided that where in the exercise of these powers the Judge reviewing the proceedings directs a retrial of the accused, or directs further evidence to be taken, the reviewing Judge may direct the retrial to be held or the further evidence to be taken by the Special Judge by whom the case was tried in the tlrst instance or by any other Special Judge, or by a Special Judge to be appointed for the purpose by the Government. (3) the person appointed under sub-section (1) to review the proceedings of a Special Judge may call for and examine the record of any proceedings before the Special Judge for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the Special Judge, and may exercise in the case of proceedings the record of which has been so called for any of the powers which would have been exercisable by him in the case of such proceedings had they been submitted to him for review under sub-section (1). x x x x x x x x 14. Exclusion of interference of other Courts:-Notwithstanding the provisions of the Code of Criminal Procedure, 1989, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence made or passed by a Special Judge or reviewing Judge under this Ordinance and, save as provided in this Ordinance , no Court shall have authority to revise such order or sentence or to transfer any case from the Court of a Special Judge or to made any order under section 491 of the Code of Criminal Procedure. 1989, or have any jurisdiction of any kind in respect of any proceedings under this Ordinance." 12. Section 9 of the Ordinance provides that which court can review the order of conviction. It also provides that Special Judge can submit the case-proceedings before the Reviewing Judge, if he is of the opinion that if involves questions of special difficulty. 13. A reviewing judge has the powers in terms of section 439 of the Code. Sub-Clause 3 of Section 9 of the Ordinance provides that the reviewing judge is within his powers to examine the record in order to satisfy the correctness, legality and propriety of any finding, sentence or order recorded or passed. 14. The reviewing judge is to be chosen by the Government from the Judges of the High Court and it expressly provides that the decision of the reviewing judge is final. 15. On conjoint reading of section 7, 8 and 9 of the Ordinance, one comes to an in-escapable conclusion that the High Court can not exercise powers as revisional court. The reviewing judge is to be chosen by the Government from the Judges of the High Court and it expressly provides that the decision of the reviewing judge is final. 15. On conjoint reading of section 7, 8 and 9 of the Ordinance, one comes to an in-escapable conclusion that the High Court can not exercise powers as revisional court. This court cannot exercise a jurisdiction or any other power as provided in the Criminal Procedure Code. It is no where provided that this court can exercise powers under section 561-A Code or can hear appeal against conviction in terms of section 406 in terms of chapter XXXI contained in part-7 of the Code, but Reviewing Judge can exercise powers as contained in section 439 of the Code in terms of sub-clause (2) of section 9 of the Ordinance. 16. Section 14 contains words "Exclusion of interference of other Courts". This provision of law provides that interference of other courts is expressly barred. It specifically provides that no appeal shall lie from any order or sentence made or passed by a Special Judge or reviewing judge under the Ordinance except as provided by the Ordinance. What is provided by the Ordinance is discussed hereinabove. 17. It further contains that no Court shall have authority to revise such order or sentence or transfer any case from the court of Special Judge. This court cannot make any order under section 491 of the Code also. Further it provides that this court cannot exercise any jurisdiction or power in respect of any proceedings under the Ordinance. This provision of law specifically excludes jurisdiction of this Court. Viewed thus this Court cannot exercise jurisdiction in terms of section 561-A of the Code. Viewing thus, the preliminary objection raised by learned counsel is having force and accordingly this petition is dismissed.