Ms. Maisha Ahmed
Definition :
Quashment means to set aside or nullify. In the law, an application for relief asks the judge to issue an order “quashing,” or usually preventing the Court’s decision. Section 561-A specially provides a provision for the inherent power of the High Court Division of the Supreme Court of Bangladesh.
High Court Division has the inherent power to make orders and ensure justice.
Section 561A of The Code of Criminal Procedure, 1898 (v of 1898) reads as follows.
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 thiCodede or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Therefore, an order for quashing under Section 561-A means, as far as the meaning of the dictionary is concerned, to annul, cancel, or invalidate a judgment or order or proceeding in a criminal trial pending in a subordinate court or Tribunal. High Court Division of the Supreme Court of Bangladesh.
In simple terms, quashment means putting an end to an existing proceeding pending before the subordinate trial Courts or Tribunals by the Superior Court.
Why is Quashment Required?
- To give effect to an order of thCodede
- To prevent abuse of the process of the Court
- To meet the end of justice
It is also necessary that the High Court Division exercise its inherent powers under section 561-A when the provisions of the Code of Criminal Procedure appear to be inadequate or wholly silent to remedy the situation.
What May be Quashed?
Under Section 561-A, criminal proceedings at any level may be challenged. The following stages can be quashed.
- Taking Cognizance of Offence
- Police Investigation
- FIR
- Complaint Petition
- Charge-Sheet
- Summons
- An Inter-Locutory Order
When can it be invoked?
The inherent power provided under Section 561A of the Code of Criminal Procedure may be used at any time during any stage of the procedure, even after the trial ended. (Md.Saidul Kabir versus The State and another, Criminal Miscellaneous Case No. 53717 of 2018).
Nature and power of Section 561-A
- The power under the Section 561-A is undefined and Unlimited
- Section 561-A shall be exercised in the interest of justice
- Exercise of power under section 561-A by the High Court Division is not a rule but an exception.
- This unique power is not unfettered.
- The exercise of inherent power is not arbitrary, and it is governed by certain principles that are established by judicial guidance.
It is pertinent to note that The High Court should not exercise its powers under Section 561-A when other remedies are available under the law.
The rules and principles for quashing a proceeding
Guidelines and principles for quashing a proceeding were established in the case of Abdul Kader Chowdhury vs. the State reported in 28 DLR (AD)(38). After that, the decision in the matter of Ali Akkas v. Enayet Hossain and others, reported in 17BLD(AD)(1997) 44=31 DLR(AD)69, then reiterated To bring the case under the jurisdiction of section 561A of the Code of Criminal Procedure one of the following conditions must be met:
1. Interference at an early stage may be justified when the circumstances are so absurd that even on the admitted facts, there is nothing against the accused;
2. Where institution and continuation of the procedure is abusive of judicial proceedings;
3. If the initiation or continuation of the proceeding is prohibited by law,
4. When the allegations in the FIR or the complaint, even when taken at face value and accepted in their entirety, do not constitute the alleged offence,
5. The charge against the accused is an alleged crime, but no legal evidence has been presented to support the case, or the evidence presented cannot prove the charge.
In Mamunur Rashid Nur versus Criminal Miscellaneous Case. 31662 of 2021
The accused petitioner went to the Appellate Court Division to quash the proceeding because the procedure was barred by law; the Court was pleased to issue Rule and Stay.
However, If there is a prima facie case against the accused, the criminal procedures cannot be quashed. (The Code of Criminal Procedure, 1898 (v of 1898), Section 561A.[Md. Arifur Rahman alias Bablu vs Santosh Kumar Sadhu and another, 14 BLD (AD) 78].
In Hasina Akhter versus Amena Begum and others, Criminal Petition No.957 of 2021 with Criminal Petition No.1111 of 2022
In this case, none of those above quashment principles applies since the accused have been identified as having committed a prima facie offence. The High Court Division committed a serious error when it used its power under Section 561A of the Code of Criminal Procedure at this stage before the prosecution had finished presenting its case. The High Court Division has not invoked Section 561A of the Code of Criminal Procedure to usurp the power of the trial court.
In the case of Golam Sarwar Hiru vs The State and another, reported in 13 MLR 103 (AD), This Division concluded that neither the High Court Division nor the Appellate Division of the Supreme Court is in favour of considering an application under section 561A of the Code of Criminal Procedure for the quashing of proceedings at the stage when the trial has already started, and prosecution witnesses are being cross-examined.
Inherent power may be exercised before taking cognizance.
The High Court Division may not intervene under section 561A before the filing of the complaint.[33 BLD (AD),359 (2013)]. In the case of N Mahmud vs. M Ahmed, 1984 BLD (AD) 97=36 DLR (AD) 14, According to Masud J, a court proceeding begins when the Magistrate takes cognizance of an offence based on a police report or complaint. Moreover, Under section 561A of the Criminal Procedure Code, no proceeding can be quashed before such cognizance. After taking cognizance, a process is issued.
However, suppose one or more of the three conditions are fulfilled before the inherent powers are exercised in the early stages of criminal proceedings, such as during the investigative stage or before taking cognizance. In that case, The three conditions are as follows:
- Where the facts are so incredible that even on the admitted facts, no case stands against the accused.
- There is the likelihood of prolonged prosecution, which may amount to harassment of the accused person.
- The accused person will suffer a great deal of injustice if the prosecution or criminal proceeding is allowed because doing so would amount to an abuse of the procedures after quashment.
When the High Court Division gives an order for quashing a criminal proceeding pending before the Subordinate Court or Tribunal:
- the proceeding pending before the subordinate Court or Tribunals shall be stopped;
- the subordinate Court’s Court’sunalTribunal’sings shall not be maintained anymore and;
- the Accused-Petitioner shall also be free to go from the custody if they are in jail custody;
- If the Accused-petitioner is in custody and is not produced before the concerned Court or Tribunal, the concerned Court or Tribunal must send down an order of release if the Accused-petitioner is in jail as per Section 561-A
An FIR may be quashed by the High Court, which will stop all criminal proceedings against the accused petitioner before the subordinate Court or Tribunal as a result of such release or quashment. It should be noted before filing a petition with the High Court Division for quashing of FIR, lawyers must ensure that the FIR does not reveal any offence against the accused.
The Time limit for filing a petition under Section 561A
There is no limitation period on applying this section. But, of course, it is desirable that the applicant act quickly and that the application be filed within a reasonable period.
However, applicants should take immediate action and submit their applications promptly.
Key information from Section 561-A
- The Inherent Power is exercisable only by the High Court Division.
- Any Criminal Law court subordinate cannot exercise the Inherent Power to the High Court Division.
- The Inherent Power can be invoked to make sure justice is served at the first stages of the criminal proceedings.
- The Inherent Power can be invoked before or after the trial court frames the charge.
- The Inherent Power only allows interference with the prosecution where there is a case of insufficient evidence.
- The Sessions Judge’s decision or order made in revision under Section 439A of the Codede may be challenged under the Inherent Power.
- The Inherent Power may be invoked to alter or quash the decision made by the criminal courts subordinate to the High Court Division.
- The Inherent Power is neither an alternative power nor an additional power to a current one, rather it has been saved in light of the interest of justice for which no system is available in thCodede.
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