Extraordinary Original Criminal Jurisdiction in India

The Extraordinary Original Criminal Jurisdiction of High Courts in India: A Scholarly Analysis

Introduction

The Indian judicial system, hierarchical in its structure, typically vests original criminal jurisdiction in Magistrates' Courts and Courts of Session. High Courts primarily exercise appellate and revisional jurisdiction. However, a significant, albeit sparingly used, power resides with the High Courts: the Extraordinary Original Criminal Jurisdiction (EOCJ). This jurisdiction empowers a High Court to take up a criminal case for trial at the first instance, bypassing the subordinate courts. The EOCJ serves as a critical mechanism to ensure fair trial, uphold the majesty of law, and address situations where the interests of justice might be compromised in the ordinary course. This article delves into the jurisprudential underpinnings, statutory basis, scope, and judicial interpretation of the EOCJ in India, drawing upon key legislative provisions and landmark judicial pronouncements.

Historical Context and Evolution

The EOCJ of High Courts in India traces its origins to the Letters Patent establishing the Presidency High Courts (Calcutta, Bombay, Madras) in the 19th century, and subsequently for other High Courts.[13] These charters conferred various jurisdictions, including an "extraordinary original criminal jurisdiction." For instance, Clause 24 of the Letters Patent of the Bombay High Court (and similar clauses for other High Courts like Lahore[13]) empowered the High Court to remove, try, and determine, as a court of extraordinary original jurisdiction, any criminal case from any court subject to its superintendence.[5]

The Code of Criminal Procedure, 1898, under Section 411-A, provided for appeals from trials held by a High Court in its "ordinary original criminal jurisdiction." This was later substituted to refer to trials in its "extraordinary original criminal jurisdiction."[12] The Supreme Court in A.R. Antulay v. R.S. Nayak (1988) noted that the Code of Criminal Procedure, 1973 (CrPC) abolished the ordinary original criminal jurisdiction of High Courts but retained the EOCJ.[5, 12] This position is affirmed by judicial observations, such as in P. George Philip & Anr. v. Official Liquidator, which reiterated that the 1973 CrPC abolished ordinary original criminal jurisdiction but preserved the EOCJ conferred by Letters Patent.[12] Similarly, the Delhi High Court in People'S Patriotic Front v. K.K Birla And Others observed that under the 1973 Code, High Courts no longer possess ordinary original criminal jurisdiction but retain EOCJ.[22] Early cases like Emperor v. Vinayak Damodar Savarkar (1910) illustrate the High Court exercising original trial jurisdiction, albeit the specifics of "extraordinary" versus "ordinary" were context-dependent then.[8]

Sources of Extraordinary Original Criminal Jurisdiction

The EOCJ is derived from multiple sources, primarily the Letters Patent of the respective High Courts and provisions within the CrPC, 1973. The Constitution of India also plays an indirect role in empowering High Courts to ensure justice, which may, in exceptional circumstances, involve invoking EOCJ.

Letters Patent

For High Courts established under Letters Patent, these charters remain a significant source of EOCJ. As observed in C.S. Agarwal v. State & Ors., the Letters Patent of the High Court of Judicature at Lahore, for example, explicitly ordained extraordinary original criminal jurisdiction over persons residing within the jurisdiction of any court subject to its superintendence.[13] The distinction between "ordinary original civil jurisdiction" and "extraordinary original civil jurisdiction" under Letters Patent, as discussed in cases like Moulvi Hamid Hassan Nomani v. Banwarilal Roy[14] and Collector Of Monghyr And Others v. Maharaja Pratap Singh Bahadur And Others[15] by analogy helps understand the special nature of such extraordinary jurisdictions in criminal matters as well.

Code of Criminal Procedure, 1973

The CrPC, 1973, contains provisions that enable and acknowledge the EOCJ:

  • Section 407(1)(iv) CrPC: Empowers the High Court to order that any particular case or class of cases be transferred from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction, or that any particular case be committed for trial to a Court of Session, or that any particular case shall be transferred to and tried before itself. This power of withdrawal for trial by the High Court itself is a direct manifestation of EOCJ.
  • Section 374(1) CrPC: Provides that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. This provision, as highlighted in Sita Ram And Others v. State Of Uttar Pradesh[21] and discussed in A.R. Antulay (1988),[5] inherently recognizes the existence and exercise of EOCJ by all High Courts.

Constitution of India

While the Constitution does not directly confer EOCJ for trial, its provisions empower higher courts to ensure justice, which can lead to situations where EOCJ is exercised. Article 226 grants High Courts extensive writ jurisdiction for the enforcement of fundamental rights and "for any other purpose." In cases where state machinery fails or investigations are biased, High Courts have directed investigations by independent agencies like the CBI, as seen in State Of West Bengal And Others v. Committee For Protection Of Democratic Rights, West Bengal And Others.[7] Though primarily about investigation, the underlying principle of ensuring fair justice could, in extreme scenarios, lead a High Court to assume trial jurisdiction. Furthermore, the Supreme Court, under Articles 136 and 142, has wide powers to transfer cases or order retrials to ensure fair justice, as seen in K. Anbazhagan v. Superintendent Of Police And Others[2] and Zahira Habibulla H. Sheikh And Another v. State Of Gujarat And Others.[3] Such transfers may result in a High Court exercising EOCJ.

Scope and Nature of EOCJ

EOCJ is, by its very definition, exceptional. It is not meant to be a substitute for the ordinary criminal justice process. It is typically invoked when there is a reasonable apprehension that a fair and impartial trial cannot be held in the subordinate court, or when complex questions of law are involved, or in cases of significant public importance or involving high public officials where local influences might impede justice.[2, 3, 4] The exercise of this jurisdiction is discretionary and must be based on cogent reasons recorded by the High Court.

When a High Court tries a case under its EOCJ, it generally follows the procedure applicable to a trial before a Court of Session. A significant procedural aspect is that an appeal from a conviction by the High Court in its EOCJ lies directly to the Supreme Court under Section 374(1) CrPC.[5, 21] This was a key point of discussion in A.R. Antulay (1988), where it was affirmed that an accused tried under EOCJ by the High Court retains a right of first appeal to the Supreme Court.[16, 28]

The inherent powers of the High Court under Section 482 CrPC to prevent abuse of process or secure the ends of justice, as discussed in cases like State Of Bihar v. Murad Ali Khan And Others[6] and State Of U.P v. Mohammad Naim[10], are distinct from EOCJ for trial but reflect the High Court's overarching responsibility to ensure justice, of which EOCJ is a more potent instrument.

Analysis of Key Judicial Pronouncements

A.R. Antulay v. R.S. Nayak (1988)

This landmark judgment is central to understanding EOCJ in contemporary India.[5] The Supreme Court, by a majority, recalled its earlier direction (in R.S. Nayak v. A.R. Antulay (1984)[11]) transferring Mr. Antulay's trial from a Special Judge to a High Court Judge. The Court held that this direction was per incuriam as it violated the exclusive jurisdiction conferred upon Special Judges by the Criminal Law (Amendment) Act, 1952, and infringed Antulay's fundamental rights under Articles 14 and 21.

Crucially, the judgment elaborated on the nature of EOCJ. Sabyasachi Mukharji, J. (as he then was), observed:

"It appears to us that there is good deal of force in the argument that section 411A of the old Code which corresponds to section 374 of the new Code contained the expression ‘original jurisdiction’. The new code abolished the original jurisdiction of High Courts but retained the extraordinary original criminal jurisdiction conferred by clause 24 of the Letters Patent which some of the High Courts had." (para 67-68)[5, 12]

The judgment also clarified that "any case transferred for trial to the High Court in which it exercises jurisdiction only by reason of the order of transfer is a case tried not in ordinary original criminal jurisdiction but in extraordinary original criminal jurisdiction." (para 32)[5, 28] It was further noted that where a case is withdrawn and tried by the High Court, it exercises EOCJ, and a right of first appeal to the Supreme Court under Section 374 CrPC is available to the accused. (para 213, also citing various High Court decisions like Kavasji Pestonji v. Rustomji Sorabji, Sunil Chandra Roy v. State, and People's Patriotic Front v. K.K. Birla)[5, 16, 28]

Ensuring Fair Trial: K. Anbazhagan and Zahira Sheikh

The Supreme Court's decisions in K. Anbazhagan v. Superintendent Of Police And Others[2] and Zahira Habibulla H. Sheikh And Another v. State Of Gujarat And Others (Best Bakery Case)[3], along with Sunil Kumar Pal v. Phota Sheikh And Others[4], underscore the judiciary's commitment to ensuring fair trial. In these cases, trials were transferred, sometimes inter-state, due to vitiating factors like political influence, witness intimidation, and prosecutorial bias. While these involved the Supreme Court's transfer powers, the principles are germane to the High Court's exercise of EOCJ under Section 407 CrPC, which is often invoked for similar reasons to safeguard the sanctity of the trial process. The mandatory registration of FIR, as established in Lalita Kumari v. Government Of Uttar Pradesh And Others[9], aims to set the criminal law in motion correctly, and failures at this initial stage, if pervasive, could contribute to an environment where EOCJ might be seen as a necessary corrective at the trial stage.

High Court's Broad Powers for Justice

The decision in State Of West Bengal And Others v. Committee For Protection Of Democratic Rights, West Bengal And Others[7], upholding the High Court's power under Article 226 to direct a CBI investigation without state consent, illustrates the expansive constitutional powers of High Courts to intervene when fundamental rights are threatened and state machinery is found wanting. While this pertains to investigation, it reflects the High Court's capacity to take extraordinary measures for justice, a spirit that also animates the EOCJ for trial. The concerns in Prathvi Raj Chauhan v. Union Of India And Others[1] regarding balancing protective legislation with procedural fairness also highlight the judiciary's role in ensuring that justice is not only done but seen to be done, a principle that can inform the discretionary use of EOCJ.

Limitations and Considerations

The exercise of EOCJ is subject to significant limitations. As starkly demonstrated in A.R. Antulay (1988),[5] EOCJ cannot be used to override the exclusive jurisdiction conferred by special statutes on designated courts, unless the special statute itself permits or does not bar such transfer. The power is exceptional and must be exercised with caution, ensuring that it does not unduly disrupt the normal hierarchy of courts or become a tool for forum shopping.

The Court Fees Act, 1870, as seen in Biswanath Agarwalla v. Sabitri Bera And Others, also makes provisions for fees on documents filed in High Courts in their EOCJ, indicating its formal recognition within the legal framework.[23]

The judiciary must balance the need for a fair trial in an individual case against the systemic implications of frequently resorting to EOCJ. The functions of the judiciary and police are complementary, not overlapping, and the court's functions in a criminal trial typically begin when a charge is preferred before it, as noted in older precedents like Emperor v. Nazir Ahmad (cited in Upendra Singh Maniyari v. Jagmohan Singh And Others[17, 18]), though EOCJ represents a departure from this norm under specific circumstances.

Conclusion

The Extraordinary Original Criminal Jurisdiction of High Courts in India is a vital, albeit exceptional, facet of the Indian criminal justice system. Rooted in historical charters and codified in procedural law, it serves as an essential safeguard to ensure fair and impartial trials, particularly in circumstances where the ordinary judicial process might be compromised. Landmark judgments, especially A.R. Antulay v. R.S. Nayak (1988), have meticulously delineated its contours, scope, and limitations. While its exercise demands utmost judicial caution and adherence to statutory mandates, the EOCJ remains an indispensable tool in the High Courts' arsenal to uphold the rule of law, protect fundamental rights, and preserve public confidence in the administration of criminal justice. Its continued relevance lies in its capacity to respond to extraordinary situations with extraordinary measures, ensuring that justice is not merely a procedural formality but a substantive reality.

References