With the recent sensational arrest and detention of prominent journalist Arnab Goswami, and his subsequent interim application for release on bail being rejected by the Bombay High Court, I thought this would be an opportune moment to write a little piece on the criminal original jurisdiction exercised by our High Courts. Original jurisdiction means jurisdiction exercised by the High Courts wherein Petitions are filed directly before the High Court, and not as appeals/revisions from lower courts’ orders.

The law that governs the jurisdiction of the High Courts is of course, the Code of Criminal Procedure 1973, though in some circumstances the High Courts can also exercise jurisdiction under Articles 226 and 227 of the Constitution of India which concern writ and supervisory jurisdictions respectively. More particularly, in the case of exercising power under the Constitution, the High Courts can issue writs of Habeas Corpus when a person is held in illegal custody by any person or persons, including the police/state. But since the writ and supervisory jurisdiction of the High Courts, even when they involve criminal matters, are generally not considered to be an exercise of criminal original jurisdiction, I’ll limit myself to the commonly exercised powers of the High Courts under the Criminal Procedure Code((I’m not going into the administrative and procedural provisions of Cr.P.C. relating to the powers of the High Court. There are a huge number of provisions in the Cr.P.C. dealing with the powers of the High Court which is beyond the scope of this article)), which I’ll refer to as the Code from here on.

Bail under Section 439

When a person is arrested and detained either under police or judicial custody, he/she can approach either the High Court or a Court of Sessions for bail under this section. High Courts are empowered to grant bail, conditionally if necessary, under Section 439(1)(a) of the Code. The section states:

439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

Source: https://indiankanoon.org/doc/1290514/

So, a petition for bail can be filed under Section 439 either before the High Court or the Court of Sessions. Conditions may be imposed if the offence is of the nature specified in Section 437(3), that is, for any offence carrying a maximum punishment of seven years or more. Bails for serious offences are usually granted with conditions. Conditions imposed on the Petitioner generally are (i) visiting the local police station periodically and signing a register (ii) cooperating with the police investigation when called upon to do so, and (iii) not leaving the jurisdiction in which he/she is residing without taking permission from the Court and so on. Unconditional bails are rarer, but are granted when it is shown that there is no prima-facie case against the Petitioner.

Anticipatory bail under Section 438

This section provides for the grant of what is popularly known as “anticipatory bail”, but this phrase is not actually used in the Act. Here is the wording of Section 438(1):

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Source: https://indiankanoon.org/doc/1783708/

This section actually states that the High Court may pass an order that if the Petitioner is arrested in the future, he/she shall be released on bail, subject to conditions. Section 438(2) states the conditions which may be imposed by the High Court:

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

Source: https://indiankanoon.org/doc/1783708/

As you can see, this bail order comes into force from the moment of arrest of the Petitioner. As with bail, conditions may be imposed by the High Court or Court of Sessions. These additional conditions may be imposed to ensure that the Petitioner cooperates with the police investigation and also does not leave India without getting permission from the Court. In fact, High Courts have wide discretion to impose any condition that it deems fit and proper in the circumstances of the case.

Inherent powers under Section 482

This is a catch-all section which grants inherent powers to the High Court to make any order to give effect to the provisions of the Code, to prevent abuse of the process of Court and in the interests of justice. The provision is reproduced below:

482. Saving of inherent powers of High Court. Nothing in this Code 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 Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Source: https://indiankanoon.org/doc/1679850/

Under this section, the High Court can pass any order in any criminal case, including but not limited to, directing the police to register a complaint, quash complaints which are obviously mala fide, transfer the case to CID, CBI or other agencies, modify or relax bail conditions, and so on. However, in exercising jurisdiction under this provision, High Courts are generally very cautious to ensure that the powers of lower Courts and investigating agencies are not unnecessarily interfered with.

As can be seen, the High Court can be approached for bail, anticipatory bail or any other kind of miscellaneous orders in respect of criminal cases at different stages. I have not gone in-depth into any single aspect or even covered all the possibilities, because the law is an ocean and I can only take a small dip into it with a cup.