Power of High Court — Ehtesab Act

That under section 10(2) of the Ehtesab Bureau Act the powers of High Court have not been ousted to release a person accused of an offence under the said Act for the following reasons:- i. that to oust the jurisdiction of superior Courts the provisions of the relevant Ordinance or Act should be clear, definite, unambiguous and admitting of no other interpretation than the one that the ouster of jurisdiction is absolute;ii. that in the National Accountability Bureau Ordinance, 1999 the provisions of section 9(B) are clear, unambiguous and definite to the effect that no Court including the High Court shall grant bail to a person accused of an offence under the said Ordinance, whereas in the Ehtesab Bureau ACt of 2000, prevalent in Azad Jammu and Kashmir the words “High Court” are conspicuously missing which clearly implies that the jurisdiction of the High Court has not been ousted to release an accused person on bail or to admit him to bail; iii. AJK Interim Constitution Act — That the High Court has even the constitutional jurisdiction to issue an appropriate writ under section 44 of the AJ&K Interim Constitution Act, 1974 and can also pass an order of bail under the said constitutional provision. The constitutional provisions empowering the High Court to release a person on bail cannot be taken away by subordinate legislation; iv. that even if it be assumed that the jurisdiction of the High Court was limited and the appeal was competent to the High Court against a final order of conviction or an acquittal order, the powers of revision, superintendence and control of the Courts subordinate to the High Court are available to the High Court and the same have not been ousted by the Ehtesab Bureau Act; v. S. 561-A Cr.P.C. — That the High Court is also empowered under section 561-A Cr.P.C. to quash an order which is an abuse of the process of the order of any Court subordinate to the High Court; vi. Ss. 497, 498, 439 and 561-A Cr.P.C. — That if an appeal was barred under section 40(3) of the Ehtesab Bureau Act and the same was only available against the final order of conviction or against the acquittal order, an application for grant of bail to the High Court under sections 497, 498, 439 and 561-A Cr.P.C. was not barred by the provisions of the Ehtesab Bureau Act; and vii. S. 561-A Cr.P.C. — That the provisions of C.P.C. apply mutatus mutandis to the proceedings before the Ehtesab Court, except to the extent of inconsistency, therefore, any order which was patently illegal or in violation of the provisions of the Act could have been set at naught by the High Court in exercise of its revisional jurisdiction or its jurisdiction u/s 561-A Cr.P.C. The State & another v. Javed Iqbal 2001 SCR 1(K)
U/S.44 of the Interim Constitution Act, the High Court has been empowered to issue writs in appropriate cases which cannot be taken away by subordinate legislation, in all cases, where the jurisdiction is given by the subordinate legislation, the same can also be taken away by subordinate legislation — There can hardly be any controversy that power of High Court to release a person on bail under Cr.P.C. has been given by subordinate legislation and can be taken away by any other subordinate legislation — There is hardly any justification to argue that the words ‘other Court’ employed in sub-section 2 of section 10 do not apply to the High Court, especially so when no such intention can be inferred from the provisions contained in Ehtesab Act. The State & another v. Javed Iqbal 2001 SCR 1 (B)
An order in exercise of writ jurisdiction can be passed subject to conditions laid down in relevant constitutional provision — While giving a relief in exercise of a writ jurisdiction altogether different considerations weigh with the Courts and thus, such an order is not helpful for interpreting section 10(2) of Ehtesab Act. The State & another v. Javed Iqbal 2001 SCR 1 (C)