Law: Criminal Procedure Code, 1898

Section: S. 561-A

Law: Police Act, 1861

Section: S. 25

(a) Criminal Procedure Code (V of 1898),   S. 561-A-Magis trate breaking open lock of shop in possession of tenant and giving possession to landlord on assumption that tenant had not been heard of for 3 or 4 months-Order illegal-High Court set aside order and directed possession to be restored to tenant.   P. T. Chandra, Editor Tribune v. Emperor A I R 1942 Lah. 171 ref.   (b) Police Act (V of 1861),   S. 25-Act of Magistrate Executive act.   When a Magistrate acts under section 25 of the Police Act, 1861 since the provisions of the Code do not apply to it, his not may be called an executive act.   (c) Criminal Procedure Code (V of 1898),   S. 561-A-Power under S. 561-A analogous to power exercisable in issuing a writ of certiorari-Constitution of Pakistan (1956), Art. 170.   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.   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.   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.   The order was passed by Mr.…