POWERS AND FUNCTIONS OF HIGH COURT IN INDIA:

The Constitution of India has not made any clear and detailed description of the powers and
functions of the High Court as it has done in the case of the Supreme Court. The
Constitutions says that the Jurisdiction of the High Court shall be the same as immediately
before the commencement of the Constitution, subject to the provisions of the constitution
and the laws made by the appropriate legislature. The powers and functions of the High Court
can be divided as follows:

Original Jurisdiction:

All matters relating to revenues are included in the original jurisdiction of the High court.

Besides, civil and criminal cases are also supposed to belong to the original jurisdiction. But
only the High Courts at Kolkata, Mumbai and Chennai can have the first trial in civil and
criminal cases. The original criminal jurisdiction of the High Court has, however, been
abolished by the Criminal Procedure code, 1973. At present the criminal cases are tried in the
city sessions Courts in Kolkata, Mumbai and Chennai.

Appellate Jurisdiction:

The High Court is the highest court of appeal in the state. It has appellate jurisdiction in civil
and criminal cases.

a. In civil cases, appeal can be made to the High Court against the decisions of the District
Judges and the Subordinate Judges.

b. Again, when any court subordinate to the High Court decides an appeal from the decision
of an inferior court, a second appeal can be made to the High Court only on question of law
and procedure.

c. Besides, appeal from the decision of a single Judge of the High Court itself also lies to the
High Court. In criminal cases appeals against the decisions of :

A Sessions Judge or an Additional Sessions Judge, where the sentence is of imprisonment

exceeding 7 years; or

Assistant Sessions Judge, Metropolitan Magistrate or other Judicial Magistrates in certain

specified cases other than ‘petty’ cases can be made to the High Court.
Powers of issuing Directions, Order or Writs:

The High Court has been empowered to issue writs of habeas corpus, mandamus, and
prohibition certiorari and quo warranto for the enforcement of the fundamental rights and ‘for
other purposes’. The Supreme Court can issue the writs only for the enforcement of
fundamental rights and not for other purposes. The power of the High Court to issue writs in
the nature of habeas corpus cannot be curtailed even during emergency.

309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be continued from day to day until all the
witnesses in attendance have been examine, unless the Court finds the adjournment of the
same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under Sec.376, Sec.376-A,
Sec.376B, Sec.376C or Sec.376D of the Indian Penal Code, the inquiry or trial shall, as far as
possible be completed within a period of two months from the date of filing of the
chargesheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it
may, from time to time,for reasons to be recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand
the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for
a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement
shall begranted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the
accused person
to show cause against the sentence proposed to be imposed on him.]
Provided also that -
(a) no adjournment shall be granted at the request of a party, except where the
circumstances are beyong the control of that party;
(b) the fact that the pleader of a party is engaged in another court, shall not be a ground
for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the
party or his pleader though present in Court, is not ready to examine or cross-examine
 the witness, the Court may,if things fit, record the statement of the witness and pass
such orders as it thinks fit dispensing with the examination-in-chief or cross-
examination of the witness, as the case may be.
Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused
may have committed an offence, and it appears likely that further evidence may be obtained
by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted
include, in appropriate cases, the payment of costs by the prosecution or the accused.

Judging the validity of laws:

In the original Constitution the High Courts were given powers of judging the validity of the
Central and the State laws. But the 42nd Amendment of the Constitution took away the
powers of the High Courts to determine the validity of the central laws and put various
conditions on their powers of judging the validity of the State laws. However, the 43rd
Constitutional (Amendment) Act, 1978 has restored these powers to the High Courts.

Powers of superintendence:

Every High Court has a general power of superintendence over all the lower courts and
tribunals within its jurisdiction except military courts and tribunals. By virtue of this power
the High Court can call for returns from such courts; make and issue general rules and
prescribe forms for regulating the practice and proceedings of such courts; and prescribe
forms in which books, entries and accounts shall be kept by the officers of any such court.

Powers of taking up cases:

If a case is pending before a sub-ordinate court and the High Court is satisfied that it involves
a substantial question of the constitutional law, it can take up the case and decide it itself.

Control over sub-ordinate courts:

The High Court can control the subordinate courts in the State. It is to be consulted by the
Governor in the matter of appointing, posting and promoting district judges. The High Court
plays an important role in the appointment, promotion, etc. of the staff of the subordinate
courts including the District Court.
Other powers:

Besides the above powers, the High Court performs some other functions:

Like the Supreme Court, the High Court also acts as a Court of Record.

It has the power to punish for contempt of itself.

The High Court can frame the required rules to carry out its judicial functions.

SECTION 482:

The Inherent Powers of High Court in India

The essential object of criminal law is to protect society against criminals and law- breakers. For
this purpose, the law holds out threats of punishments to prospective lawbreakers as well as
attempts to make the actual offenders suffer the prescribed the punishment for their crimes.
Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as
the procedural criminal law. Substantive criminal law defines offences and prescribes punishments
for the same, while the procedural law is to administrate the substantive law

Our legal system’s law of crime is mainly contained in the Code of Criminal Procedure, 1973 which
has come into force from April 1, 1974. It provides the machinery for the detection of crime,
apprehension of suspected criminals, collection of evidence, determination of the guilt or innocence
of the suspected person and the imposition of suitable punishment on the guilty person. In addition,
this Code also deals with the prevention of offences (Sections 106- 124, 129- 132 and 144- 153),
maintenance of wives, children and parents (Sections 125- 128) and public nuisances (Sections 133-
143).

The Code also controls and regulates the working of the machinery set up for the investigation and
trial of offences. On the one hand it has to give adequately wide powers to make the investigation
and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take
precautions against errors of judgement and human failures and to provide safeguards against
probable abuse of powers by the police or judicial officers. This often involves a “nice balancing of
conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the
extremely difficult task of deciding which of them should predominate”.

The Code has obviously tried to make itself exhaustive and complete in every respect; and it has
generally succeeded in this attempt. However, if the Court finds that the Code has not made specific
provision to meet the exigencies of any situation, the court of law has inherent power to mould the
procedure to enable it to pass such orders as the ends of justice may require.

It has however been declared by the Supreme Court that the subordinate courts do not have any
inherent powers. The High Court has inherent powers and they have been given partial statutory
recognition by enacting 482 of code

Background of section 482

The power to quash an FIR (First Information Report) is among the inherent powers of the High
Courts of India. Courts possessed this power even before the Criminal Procedure Code (CrPC) was
enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the section 561(A)
of the 1898 code. Since high courts could not render justice even in cases in which the illegal was
apparent, the section was created as a reminder to the courts that they exist to prevent injustice
done by a subordinate court.

“Nothing in this code shall be deemed to limit or effect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under the code, or to prevent
abuse of the process of any court or otherwise to secure the ends of justice”

Exercise of power under Section 482 Cr.P.C. is the exception and not rule – Inherent jurisdiction of
High court under section 482 of Cr.P.C may be exceeded:

1. To give effect to an order undr the code:

Ordinarily HC will not interfere at an interlocutory stage of criminal proceeding in
subordinate court but, HC is under an obligation to interfere if there is harassment of any
person (Indian citizen) by illegal prosecution. It would also do so when there is any
exceptional or extraordinary reasons for doing so.
2. To prevent abuse of the process of the court:
Test to determine whether there has been any abuse of any court are
 See whether a bare statement of facts of case would be sufficient to convince HC if it
is a fit case for interference at intermediate stage.
 Whether in the admitted circumstances it would be a mock trial if case is allowed to
proceed.

Reasons for High Court can interfere:

  Long lapse of time
 Failure or impossibility to supply to accused, copies of police statements and
other relevant documents- grounds for other relevant documents- grounds for
HC to quash proceedings against accused.
3. To otherwise secure the ends of justice:
Eg. When a clear statutory provision of law is violated- HC can interfere. It is of vital
importance in the administration of justice, and ensure proper freedom and independence
of Judges must be maintained and allowed to perform their functions freely and fearlessly
without undue influence on anyone, even SC. At the same time Judges and Magistrate
should act with a certain amount of justice and fair play.

The SC in Madhu Limaye v. Maharashtra, has held the following principles would govern the
exrcise the inheritance jurisdiction of High Cout
I. Power is not to be resorted to if there is specific provision in code for redress of
grievances of aggrieved party.
II. Power is not to be resorted to if there is specific provision in code for redress of
grievances of ends of justice.
III. It should not be exercised against the express bar of the law engrafted in any
other provision of the code.

It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of
the High Court under Section 482 of the Code of Criminal Procedure should be exercised. But some
attempts have been made in that behalf in some of the decisions of this Court.

LIMITATION ON SECTION 482 OF CR.P.C

Even though the inherent jurisdiction of the High Court under Section 482 is
very wide, it has to be exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid down in the section
itself. It is to be exercised exdebito justitiae to do real and substantial justice for the
administration of which alone, courts exist. This view has been taken by the
Hon'ble SC in many of its judgments including the recent Monica Kumar v. State
of Uttar Pradesh.

In a proceeding under section 482, the High Court will not enter into any finding of facts, particularly
when the matter has been concluded by concurrent finding of facts of two courts below.
In State of Bihar and another v. K.J.D. Singh, the Hon'ble Supreme Court had a question whether the
Criminal Proceedings can be quashed even before the Commencement of the Trial. The Supreme
Court went ahead and held that "The inherent power under Section 482 has to be exercised for the
ends of the justice and should not be arbitrarily exercised to cut short the normal process of a
criminal trial. After a review of catena of authorities, Pendian, J. in Janta Dal v. H.S. Chowdhary
(supra) has deprecated the practice of staying criminal trials and police investigations except in
exceptional cases and the present case is certainly not one of these exceptional cases."

In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit the powers of the Hon'ble
High Court within the ambit of the Cr.P.C. It was held, "Inherent power of the High Court cannot be
invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C.".

It is well settled that the inherent powers under section 482 can be exercised only when no other
remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an
effective alternative remedy is available, the High Court will not exercise its powers under this
section, specially when the applicant may not have availed of that remedy.

The High Courts of India: Composition, Appointment  of Judges and other Details!

Article 214 says that every State has a High Court operating within its territorial
jurisdiction. But the Parliament has the power to establish a common High Court for two or
more States (Article 231). For Instance, Punjab and Haryana have a common High Court.
Similarly there is one High Court for Assam, Nagaland, Meghalaya, Manipur and Tripura.

In India, neither the State executive nor the State Legislature has any power to control the
High Courts or two after its Constitution or organisation. It is only Parliament which can do
it. In case of Union Territories the Parliament may by law extend the jurisdiction of a High
Court to or exclude the jurisdiction of a High Court from any Union Territory, or create a
High Court for a Union Territory.

Thus Delhi, a Union Territory, has a separate High Court of its own while the Madras High
Court has jurisdiction over Pondicherry, the Kerala High Court over Lakshadweep and
Mumbai High Court over Dadra and Nagar Haveli, the Kolkata High Court over Andaman
and Nicobar Islands, the Punjab High court over Chandigarh.

Composition of High Courts:

(i) Every High Court shall consists of a Chief Justice and such other judges as the President
of India may from time to time appoint.

(ii) Besides, the President has the power to appoint

(a) Additional Judges for a temporary period not exceeding two years, for the clearance of
areas of work in a High Court;

(b) an acting judge, when a permanent judge of a High Court (other than Chief Justice) is
temporarily absent or unable to perform his duties or is appointed to act temporarily as Chief
Justice.

But neither an additional nor an acting Judge can hold office beyond the age of 62 years (by
15th Amendment) Act age of retirement raised from 60 to 62.

Appointment and Conditions of Office of a Judge of a High Court:

Every Judge of a High Court shall be appointed by the President. In making the appointment,
the President shall consult the Chief Justice of India, the Governor of the State (and also the
Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief
Justice).

Tenure:

A Judge of the High Court shall hold office until the age of 62 years.

Every Judge, permanent, additional or acting, may vacate his office earlier in any of the
following ways:

(i) by resignation in writing addressed to the President;

(ii) by being appointed a Judge of the Supreme Court or being transferred to any other
High Court, by the President;
(iii) by removal by the President on an address of both Houses of Parliament (supported
by the vote of 2/3 of the members present) on the ground of proved misbehaviour or
incapacity,. The mode of removal of a Judge of the High Court shall thus be the same
as that of a judge of the Supreme Court.

The power to issue writs or orders for As in the case of the Judges of the Supreme Court, the
Constitution seeks to maintain the independence of the Judges of the High Court’s by a
number of provisions, By laying down that a Judge of the High Court shall not be removed,
except in the manner provided for the removal of a Judge of the Supreme Court (Article 218);
(ii) by providing that the expenditure in respect of the salaries and allowances of the Judges
shall be charged on the Consolidated Fund of the State [Article 202 (3)(d)]; (iii) by specifying
in the Constitution the salaries payable to the Judges and providing that the allowances of a
Judge or his rights in respect of absence or pension shall not be varied by Parliament to his
disadvantage after his appointment (Article 221) except under a Proclamation of Financial
Emergency [Article 360 (4)(b)] (iv) by laying down that after retirement a permanent Judge
of High Court shall not plead or act in a Court or before any authority in India, except the
Supreme Court and a High Court other than the -High Court in which he had held his office
(Article 220).