Trials before High Courts Section 520

Section 520, BNSS 2023

When an offence is tried by the High Court otherwise than under section 447, it shall, in the trial of the offence, observe the same procedure as a Court of Session would observe if it were trying the case.

⚠ Why such trials are rare

The Presidency High Courts historically possessed an original criminal jurisdiction over offences committed within the presidency towns, and section 520 is in part a survival of that arrangement.

In the ordinary working of the Sanhita, criminal trials are conducted by Magistrates and Courts of Session, and the High Court supervises them rather than replacing them.

The one live route is section 447, under which a High Court may withdraw a case to itself — exercised very sparingly, and usually only where a question of law of unusual difficulty arises or where a fair trial cannot be had in any subordinate court in the State.

And even then, the High Court more commonly transfers the case to another subordinate court than tries it itself, since trying it deprives the accused of a tier of appeal.

Sections 525 and 526, BNSS 2023

Section 525. No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested; and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

Explanation. — A Judge or Magistrate shall not be deemed a party to, or personally interested in, any case by reason only that he is concerned therein as a public servant, or that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.

Section 526. No pleader who practises in the Court of any Magistrate shall sit as a Magistrate in that Court or in any Court subordinate thereto.

📖 Manak Lal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425

Facts: A tribunal was constituted to enquire into the professional conduct of an advocate, and its chairman had earlier appeared as counsel against him in a connected matter. No actual bias was alleged, and the chairman had taken no part adverse to the advocate in the enquiry itself.

Held: The Supreme Court held that the test is not whether the adjudicator was in fact biased, and that actual bias need not be established. What matters is whether there was a real likelihood of bias — whether a reasonable person, apprised of the relevant facts, would entertain a reasonable apprehension that the adjudicator might not be impartial. The Court held that every member of a tribunal must be able to act judicially, and that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done: where the constitution of a tribunal gives rise to such an apprehension, the proceeding is vitiated however honest the adjudicator in fact was. But the Court also held that an objection of this kind may be waived: a party who knows the facts and takes his chance of a favourable decision cannot raise the point afterwards, and in that case the objection had been waived.

Ratio: Actual bias need not be shown; the test is whether a reasonable person would entertain a reasonable apprehension of bias. Justice must be seen to be done. But the objection may be waived by a party who knows the facts and takes his chance.

⚠ What the Explanation to section 525 excludes

Being concerned in the case as a public servant is not an interest for this purpose. A Magistrate who has performed official functions connected with the matter is not disqualified by that alone.

Nor is having viewed the place at which the offence is alleged to have been committed, or any other place material to the case, and made an inquiry in connection with it. A local inspection under section 347 does not disqualify the Judge who made it.

What is an interest: being a party; having a pecuniary or proprietary stake in the outcome; a personal relationship with a party or a witness; or having acted for a party in connection with the matter.

And the disqualification is liftable, but only with the permission of the Court to which an appeal lies — a safeguard which ensures the question is decided by a superior court and not by the interested Judge himself.

The position stated shortly

1. Section 520: where an offence is tried by the High Court otherwise than under section 447, it shall observe the same procedure as a Court of Session.

2. Where it tries the case under section 447, it follows the procedure applicable to the court from which the case was withdrawn.

3. A case ordinarily reaches the High Court for trial through its power under section 447 to order that a case be transferred to and tried before itself.

4. An appeal from a conviction by a High Court in its extraordinary original criminal jurisdiction lies to the Supreme Court: section 415.

5. Such trials are rare. The High Court ordinarily supervises the criminal courts rather than replacing them, and trying a case itself deprives the accused of a tier of appeal.

6. Section 525: no Judge or Magistrate shall, except with the permission of the appellate Court, try or commit for trial any case to or in which he is a party or personally interested; nor hear an appeal from his own judgment or order.

7. The Explanation excludes from “interest” the fact that he is concerned as a public servant, or that he has viewed the place and made an inquiry in connection with the case.

8. Section 526: a pleader who practises in the Court of a Magistrate shall not sit as a Magistrate in that Court or any Court subordinate to it.

9. The test for disqualification is objective: not whether the Judge was in fact biased, but whether a reasonable person would entertain a reasonable apprehension of bias. Justice must be seen to be done: Manak Lal.

10. But the objection may be waived by a party who knows the facts and takes his chance of a favourable decision, and it should therefore be taken as soon as the facts are known.