P L D 1961 (W (PLP)

The power under section 561‑A, Criminal Procedure Code, 18!18 is analogous to the power exercised in issuing a writ of certiorari, for the Magistrate either commits a patent illegality or acts entirely without jurisdiction. In certiorari, it is not necessary, when the question is one of jurisdiction, that the person or body whose order is impugned should be a judicial or quasi‑judicial tribunal. In the same way when the question is one of the abuse of a Court's process, it is not necessary that the Magistrate should purport to act as a Court. Abbas Ali Zia for Petitioner. Shahid Hussain for Respondent. Sharaf Faridi for the State. Date of hearing : 19th January 1961. JUDGEMENT M. R. KAYANI C. J.‑For the facts of this case‑ I refer to Khamisani Justice's referring order of‑the 9th January 1961. He says that the order of the Magistrate breaking open the lock of the shop and giving possession to the landlord on the assumptio8 that the tenant had not beet heard of for three or four months is clearly illegal and can be set aside‑, but he is doubtful whether possession can be restored to the tenant.

2. If the order itself could be set aside then. the ends o justice will require that possession be delivered back to the tenant, and section 561‑A, Code of Criminal Procedure, could be applied. But although toe order is illegal, there is no provision in the Code, apart from that section, under which it could be set aside.

3. The order was passed by Mr. Tahir Hussain as Additional City Magistrate. It bears. the seal of his Court. In the statement which he made before us on the 20th January 1961 , he made it clear that he had passed the order in his capacity as a Magistrate, bet he thought it was a judicial order under section 25, Police Act, "which requires a Magistrate of the district to pass appro priate 'orders in respect of unclaimed property taken charge of by the police." When, however, it was pointed out to him that the order was for breaking the lock open, he felt doubtful as to the provision of law under which he could act or had acted.

4. Now section 561‑A merely acknowledges the continued existence of 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", and adds that nothing that is stated in the Code should be deemed to affect that power. The question however, is whether this inherent power is used in respect of criminal Courts only or extends to what a Magistrate does by way of what is styled executive action ; also, whether .what the Magistrate did was done by him as a Court. So far as the Code goes, a Magistrate has no separate existence from his Court. because under section 6, "there shall be five. classes of criminal Courts", and three of these are l "Magistrates of the first class", "Magistrates of the second class" and "Magistrates of the third class". Even when a Magistrate acts under section 144, Cr. P. C., "in his opinion", a Full Bench has held P. T. Chandra, Editor Tribune v. Emperor (A I R 1942 Lah. 171) that his opinion is revisable because he acts as a Court. It may be that when he acts under section 25 of the Police Act, since the provisions of the Code do not apply to it, his act may be called an executive act. But the present order is not under section 25, and there is no capacity other than that of a Magistrate under the Code which could have given him an opportunity to pass an order, howsoever illegal and without jurisdiction. The police complied with the order because it purported to be by a Magistrate. It would not have been obeyed if a forest officer had passed it.

5. The argument that only those orders are subject to the inherent jurisdiction of the High Court as are passed under the Code is open to the following objection. The Magistrate himself derives all power from the Code. The powers of a Magistrate are, conferred on him by the Code. If he passes a wrong order purporting to be under the Code, his mistake can be corrected. If, however, he passes an order which is not under the Code and therefore, entirely without jurisdiction, he cannot be corrected. In my opinion, since the source of his power is the Code, whatever he does in purported exercise of his power should be deemed to have been done by him as a Court, and should be subject to correction. Suppose he issues a warrant of arrest against a person whose case is not pending before him. Can it be said that since the warrant was not intended to secure presence in a Court of law, but merely to harass, it cannot be taken notice of by the High Court ? If instead of a warrant, he sends an order which virtually ejects a tenant from his shop, it seems .to me that this will be a case in which the process of the Court has been abused. Under the colour of his office as a Magistrate who presides over a Court, he has issued an order which a Magistrate cannot issue. The High Court should, 'therefore, be able to act under section 561‑A to prevent abuse of the process of the Magistrate's own Court.

6. In this detail; the power under section 561‑A is analogous to the power exercised in issuing a writ of certiorari, for the Magistrate 'either commits a patent illegality or acts entirely , without jurisdiction. In certiorari, it is not necessary, when the question is one of jurisdiction, that the person or body whose order is impugned should be a judicial or quasi judicial tribunal. In the same way when the question is one of the' abuse of a Court's process, it is not necessary that the Magistrate should purport to act as a Court.

7. In this view of the case, which is both sustainable and convenient; I hold that the Magistrate's order is without jurisdiction, set it aside, and direct possession to be restored to the tenant. I. B. KHAMISANI, J.‑I agree. K. M. A Petition accepted.