Running head: INHERENT POWERS OF COURTS

SUBMITTED BY
SAVEEZA KABSHA

SUBMITTED TO
MA’AM HINA QAYYUM

DATE
05-10-18

SEMESTER
SEVENTH

LEGAL DRAFTING-I DEPARTMENT

LAW
INHERENT POWERS OF COURTS
 INHERENT POWERS OF COURTS 1

TABLE OF CONTENTS

1. The Term “Inherent” …………………………………………………………………. 02

1.1. Black’s Law Dictionary …………………………………………………… 02
2. The Term “Jurisdiction” …………………………………………………… 02
2.1. Black’s Law Dictionary …………………………………………………… 02
3. Inherent Jurisdiction Definition …………………………………………………… 02
3.1. Halsbury’s Laws of England …………………………………………………… 02
3.2. Definition Formulated by Me ……………………………………………………
02
4. Inherent Powers of Courts in Pakistan …………………………………………………… 02
4.1. Civil Courts …………………………………………………… 02
4.1.1. Section 151, The Code of Civil Procedure, 1908 ……………………………… 03
4.2. Criminal Courts …………………………………………………… 03
4.2.1. Section 561-A, The Code of Criminal Procedure, 1898 …………………………
03
4.3. Supreme Court …………………………………………………… 03
4.3.1. Order 36, Rule 6 of the Supreme Court Rules, 1980 ……………………………
03
5. History of Inherent Powers …………………………………………………… 03
5.1. In The Code of Civil Procedure, 1908
………………………………………………… 03
5.2. In The Code of Criminal Procedure, 1898
……………………………………………… 03
6. Purpose of Inherent Powers …………………………………………………… 04
6.1. In Civil Cases …………………………………………………… 04
6.2. In Criminal Cases …………………………………………………… 04
6.3. Other Purposes …………………………………………………… 04
7. Features of Inherent Jurisdiction …………………………………………………… 04
8. Major Differences between Inherent Jurisdiction of Civil and Criminal Courts ……………
06
REFERENCES …………………………………………………… 08
 INHERENT POWERS OF COURTS 2

1. The Term “Inherent”

1.1. Black’s Law Dictionary

To exist as a permanent, inseparable, or essential attribute or quality of a thing; to be

intrinsic to something.

2. The Term “Jurisdiction”

2.1. Black’s Law Dictionary

A court’s power to decide a case or issue a decree; A geographic area within which

political or judicial authority may be exercised; A political or judicial sub-division within

such area.

3. Inherent Jurisdiction Definition

3.1. Halsbury’s Laws of England

In sum it may be said that the inherent jurisdiction of the court is a virile and viable

doctrine, and has been defined as being the reserve fund of powers, a residual source of

powers, which the court may draw upon as necessary whenever it is just or equitable to

do so, in particular to ensure the observance of due process of law, to prevent vexation or

oppression, to do justice between the parties and to secure a fair trial between them.

3.2. Definition Formulated by Me

Both the terms i.e. “Inherent” and “jurisdiction” read together would mean a permanent,

essential and intrinsic power of a court to decide a case or issue a decree within the

specified geographical area and within the specified judicial sub-division.

4. Inherent Powers of Courts in Pakistan

4.1. Civil Courts

4.1.1. Section 151, The Code of Civil Procedure, 1908

 INHERENT POWERS OF COURTS 3

Saving of inherent powers of Court. Nothing in this Code shall be deemed to

limit or otherwise affect the inherent power of the Court to make such orders as

may be necessary for the ends of justice or to prevent abuse of the process of

the Court.

4.2. Criminal Courts

4.2.1. Section 561-A, The Code of Criminal Procedure, 1898

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.

4.3. Supreme Court

4.3.1. Order 36, Rule 6 of the Supreme Court Rules, 1980

The provisions of Order 36, Rule 6 of the Supreme Court Rules, 1980 confer

similar inherent powers upon the Supreme Court.1

5. History of Inherent Powers

5.1. In The Code of Civil Procedure, 1908

Section 151 in the Code of Civil Procedure (C.P.C) had been present right from the

beginning i.e. 1908. However in the sub-continent, this concept of inherent powers

emerged later in criminal procedure. Civil Courts enjoyed this privilege right from

enactment of CPC because civil cases aren’t serious enough that there is apprehension of

misuse of power at the hands of judiciary.

5.2. In The Code of Criminal Procedure, 1898

1
2005 SCMR 1014, P 1998 L 474
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After the occupation of sub-continent by Britishers, the first legislation by them in

criminal procedure was through Act XXV of 1861, followed by Act X of 1872 and Act X

of 1882. After experimenting for four years, present Act V of 1898 was enacted. After 25

years, law-givers identified shortcomings in this and found, inter alia, that situations did

arise which had not been foreseen by legislature for which no provisions existed in the

Code. It was for this reason that section 561-A was incorporated in 1923 through the

Code of Criminal Procedure (Cr.P.C) (Amendment) Act (XVIII of 1923).

6. Purpose of Inherent Powers

6.1. In Civil Cases

 To secure the ends of Justice

 To prevent abuse of the process of the Court

6.2. In Criminal Cases

 To give effect to any order under Cr.P.C

 To secure the ends of Justice

 To prevent abuse of the process of the Court2

6.3. Other Purposes

The purpose of inherent powers is to empower Courts (High Court in criminal cases;

Civil Courts in civil cases) is to cater to the lacunae in the Codes and to address every

type of situation. A legal maxim reads, ubi jus ibi remedium which is the very essence of

these powers of Courts.

7. Features of Inherent Jurisdiction

 Jurisdiction under these sections is not additional or alternative jurisdiction.3

2
2015 P.Cr.L.J. 507, 480; 1996 P.Cr.L.J. 80; 1969 SCMR 325
3
PLD 2004 SC 298 (DB); 2009 YLR 252
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 Normally inherent jurisdiction preserved in these sections be invoked in extra-ordinary

circumstances.

 The inherent powers of Courts under these sections are very wide but they aren’t

supposed to be exercised to override express provisions of law.4

 The courts can’t exercise their powers under these section in the matters when these

powers have been expressly taken away by any law.5

 The High Court can quash the proceedings pending before any Criminal Court if the

Court has violated provisions of Law by committing incurable irregularities.

 If any Criminal Court passes an order, without having jurisdiction, then the High Courts

can exercise their powers under section 561-A Cr.P.C against such order.

 If any complaint before a Criminal Code requires recording of evidence, then throwing

out of proceedings under section 561-A Cr.P.C without giving chance to the trial Court

to test the allegations by way of evidence made in the complaint, would not be proper.

 Under section 561-A Cr.P.C, statements recorded in one case cannot be used to seek

quashment of proceedings in other case.

 Under section 151 C.P.C, High Court can, in appropriate cases, convert an application

into a writ petition.6

 The Law of Limitation will not bar the exercise of inherent powers.7

 It is not the intention of Law that in exercise of inherent powers, the normal course of

trial in subordinate Courts established by Law should be diverted.8

4
PLD 2016 SC 55
5
2008 YLR 332, 2015 P.Cr.L.J. 205
6
1994 SCMR 771; P 2000 K 31
7
2014 MLD 625; P 2008 K 109; 1995 CLC 1529; P 1992 L 250
8
PLD 2010 Lah. 498
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 The High Court can exercise their jurisdiction under section 561-A Cr.P.C to quash

criminal proceedings before a Criminal Court if the Court has started Criminal

proceeding in a dispute which is of civil nature.

 High Court, in exceptional cases, would exercise jurisdiction under section 561-A

Cr.P.C without waiting for trial Court to pass orders under section 249-A or 256-K

Cr.P.C9 if the facts of the case so warrant.10

 Administrative order can be challenged before High Court under section 561-A Cr.P.C.11

8. Major Differences between Inherent Jurisdiction of Civil and Criminal Courts

Civil Courts Criminal Courts

 Section 151 of C.P.C  Section 561-A of Cr.P.C
 All Civil Courts have inherent powers  Only the High Court has inherent

under this section powers under this section

 Section 151 enumerates two purposes  Section 561-A enumerates three

i.e. to secure the ends of Justice and purposes i.e. to secure the ends of

to prevent abuse of the process of the Justice, to prevent abuse of the

Court process of the Court and to give effect

to any order under Cr.P.C

REFERENCES

Statutes
 The Code of Civil Procedure, 1908
 The Code of Criminal Procedure, 1898
 Supreme Court Rules, 1980
Case Laws
 2005 SCMR 1014

9
2014 P.Cr.L.J. 897
10
2014 MLD 599
11
2014 MLD 1059
 INHERENT POWERS OF COURTS 7

 P 1998 L 474
 2015 P.Cr.L.J. 507, 480
 1996 P.Cr.L.J. 80
 1969 SCMR 325
 PLD 2004 SC 298 (DB)
 2009 YLR 252
 PLD 2016 SC 55
 2008 YLR 332
 2015 P.Cr.L.J. 205
 1994 SCMR 771
 P 2000 K 31
 2014 MLD 625
 P 2008 K 109
 1995 CLC 1529
 P 1992 L 250
 PLD 2010 Lah. 498
 2014 P.Cr.L.J. 897
 2014 MLD 599
 2014 MLD 1059
Other Sources
 Black’s Law Dictionary
 Halsbury’s Laws of England