The Miscellaneous Chapter, and the Inherent Power of the High Court

Explanation. "Unit" includes a regiment, corps, ship, detachment, group, battalion or company; "Court-martial" includes any Tribunal with similar powers constituted under the relevant Armed Forces law.

Sub-section (2). Every Magistrate shall, on a written application by the commanding officer, use his utmost endeavours to apprehend and secure any person accused of such an offence.

Sub-section (3). A High Court may direct that a prisoner detained in a jail within the State be brought before a Court-martial for trial or to be examined on a matter pending before it.

Section 522, forms. Subject to the power conferred by Article 227 of the Constitution, the forms in the Second Schedule, with such variations as the circumstances require, may be used, and if used shall be sufficient.

Section 523, High Court rules.

Sub-section (1). Every High Court may, with the previous approval of the State Government, make rules as to (a) who may act as petition-writers in subordinate Criminal Courts; (b) the issue of licences, their conduct of business and the scale of fees; (c) a penalty for contravention, the authority to investigate it and to impose penalties; and (d) any other matter required to be provided by rules made by the State Government.

Sub-section (2). All such rules shall be published in the Official Gazette.

Section 524. If the Legislative Assembly of a State by a resolution so permits, the State Government may, after consultation with the High Court, by notification, direct that references in sections 127, 128, 129, 164 and 166 to an Executive Magistrate be construed as references to a Judicial Magistrate of the first class.

Sections 525 to 527: three disqualifications

Section 525, the interested judge. No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party or personally interested; and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

Explanation. He is not deemed a party or personally interested by reason only that he is concerned in a public capacity, or that he has viewed the place where the offence or a material transaction is alleged to have occurred and made an inquiry in connection with the case.

Note the asymmetry. Trying a case in which he is interested is possible with the permission of the appellate Court; hearing an appeal from his own judgment is absolutely barred.

Section 526. No advocate who practises in the Court of any Magistrate shall sit as a Magistrate in that Court, or in any Court within the local jurisdiction of that Court.

Section 527. A public servant having any duty to perform in connection with the sale of any property under this Sanhita shall not purchase or bid for the property.

Section 528: the inherent power

Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice.

Four things about this sentence are worth stating in an answer.

It is a saving, not a grant. The words are "nothing shall be deemed to limit or affect", which presuppose that the power exists.

It belongs to the High Court alone. No Sessions Court and no Magistrate has it.

It has three purposes, and they should be listed: to give effect to an order under the Sanhita, to prevent abuse of the process of any Court, and otherwise to secure the ends of justice. The third is the widest, and the words "any Court" in the second show that the abuse need not be of the High Court's own process.

And it is a residuary power. It exists because the Code cannot foresee everything; where the Code provides a remedy, that remedy is the route.

Sections 529 and 530: superintendence and electronic mode

Section 529. Every High Court shall so exercise its superintendence over the Courts of Session and Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by the Judges and Magistrates.

Section 530. All trials, inquiries and proceedings under this Sanhita, including:

(i) issuance, service and execution of summons and warrant; (ii) examination of the complainant and witnesses; (iii) recording of evidence in inquiries and trials; and (iv) all appellate proceedings or any other proceeding,

may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

Section 530 is the general provision behind the many particular electronic-mode powers scattered through the Sanhita: the audio-video recording of a search, the seventy-two hour signature rule in section 316, the deposition of a successor officer in section 336, attendance under section 355, and the recording of evidence in a trial in absentia under section 356(5).

A worked example

A company files a criminal complaint that, taken at its highest, discloses no offence at all; the object is plainly to pressure the accused in a civil dispute.

What is the remedy? An application to the High Court under section 528, on the ground that the proceeding is an abuse of the process of a Court, and that quashing it is necessary to secure the ends of justice.

Could a Sessions Judge do it? No. Section 528 saves the inherent powers of the High Court.

Change it: an order under the Sanhita cannot be carried out because something incidental was not provided for. That is the first limb: an order necessary to give effect to any order under this Sanhita.

Now a different problem. The Magistrate hearing a case turns out to be personally interested in it. He shall not try it or commit it for trial except with the permission of the Court to which an appeal lies from his Court, section 525. And in no circumstances may he hear an appeal from his own judgment.

He had visited the scene and made an inquiry. That does not make him personally interested, Explanation.

An advocate who practises before that Magistrate is asked to sit as a Magistrate there. He may not, in that Court or in any Court within its local jurisdiction, section 526.

Property is to be sold under the Sanhita and the officer conducting the sale wants to bid. He may not: section 527 forbids a public servant with any duty in connection with the sale to purchase or bid.

A soldier is brought before a Magistrate on a charge triable either way. The Magistrate shall have regard to the Central Government's rules and shall in proper cases deliver him, with a statement of the offence, to his commanding officer or the commanding officer of the nearest station for trial by court martial, section 521(1).

A witness in another State cannot travel. The examination may be held in electronic mode, by electronic communication or audio-video electronic means, section 530.

And the case has been pending for years. Section 529 places on the High Court a duty to exercise its superintendence over Courts of Session and Judicial Magistrates so as to ensure expeditious and proper disposal.

Distinctions

What this does NOT mean

Section 528 does not create a general appellate jurisdiction. It saves a power to make orders for three stated purposes, and it is residuary.

It does not belong to every court. Only the High Court.

Section 525 does not disqualify a judge for having seen the scene. The Explanation says viewing the place and making an inquiry does not make him a party or personally interested.

Section 522 does not make the Second Schedule forms compulsory. They may be used, with such variations as the case requires, and if used shall be sufficient.

And section 530 does not compel electronic proceedings. It says they may be held in electronic mode.

Quick revision

• 520: the High Court trying an offence otherwise than under section 447 follows the Court of Session's procedure.
• 521: Central Government rules decide court martial or ordinary trial; the Magistrate delivers the accused with a statement of the offence to the commanding officer in proper cases; he must use his utmost endeavours to apprehend on a written application; the High Court may send a prisoner to a Court-martial.
• 522 and 523: the Second Schedule forms may be used and if used are sufficient, subject to Article 227; High Court rules with State Government approval on petition-writers, licences, fees and penalties, published in the Official Gazette.
• 524: with the Legislative Assembly's resolution and after consulting the High Court, references to an Executive Magistrate in ss.127, 128, 129, 164 and 166 may be read as a Judicial Magistrate of the first class.
• 525 to 527: no Judge or Magistrate may try or commit a case he is a party to or personally interested in except with the appellate Court's permission, and never hear an appeal from his own order; a practising advocate may not sit as a Magistrate in that Court or within its local jurisdiction; a public servant connected with a sale may not purchase or bid.
• 528: the inherent powers of the High Court are not limited or affected, to give effect to an order, prevent abuse of the process of any Court, or otherwise secure the ends of justice.
• 529: every High Court shall superintend the Courts of Session and Judicial Magistrates to ensure expeditious and proper disposal.
• 530: all trials, inquiries and proceedings, including summons and warrants, examination of the complainant and witnesses, recording of evidence, and all appellate proceedings, may be held in electronic mode.

Test yourself

1. State section 528. Nothing in the Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Sanhita, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice.

2. Which courts have inherent powers under that section? Only the High Court.

3. May a Magistrate try a case in which he is personally interested? Only with the permission of the Court to which an appeal lies from his Court; and he may never hear an appeal from a judgment or order passed by himself, section 525.

4. Does viewing the scene disqualify a Judge? No. The Explanation to section 525 says he is not deemed a party or personally interested by reason only that he is concerned in a public capacity, or that he has viewed the place and made an inquiry in connection with the case.

5. Can a practising advocate sit as a Magistrate? Not in the Court of any Magistrate in which he practises, nor in any Court within the local jurisdiction of that Court, section 526.

6. What proceedings may be held in electronic mode? All trials, inquiries and proceedings under the Sanhita, including the issuance, service and execution of summons and warrants, the examination of the complainant and witnesses, the recording of evidence in inquiries and trials, and all appellate or other proceedings, section 530.

7. What duty does section 529 place on the High Court? To so exercise its superintendence over the Courts of Session and Courts of Judicial Magistrates subordinate to it as to ensure expeditious and proper disposal of cases.