Report No. 198

INDIA:

Peculiar Position in India: Under the Code of Criminal Procedure, 1973, trial courts have no inherent jurisdiction: Only High Court has inherent powers:

In this context, we may state that under section 482 of the Code of Criminal Procedure, 1973, it is declared that, nothing in the Code, shall be deemed to limit or affect the inherent powers of the High Court. This is an obvious declaration that in criminal matters, the High Court has inherent jurisdiction. But, curiously the position of the other criminal courts like the Magistrate's Courts and the Courts of Session is different.

The absence of such a provision in the Code saving the inherent power in so far as Sessions Courts and Magistrates' Courts are concerned, has led the Supreme Court to conclude that these subordinate Courts do not have inherent powers. This position was made clear by the Supreme Court in Bindeswari Prasad Singh v. Kali Singh: AIR 1977 SC 2432.

Therefore, whatever be the position in other countries, criminal Courts at the trial stage, like the Magistrates' Courts and Sessions Courts in our country cannot pass orders as to 'anonymity' of witnesses under inherent powers. Therefore, legislation is necessary to confer powers on these Courts to pass 'anonymity' orders.

While it is true that Courts whose inherent powers are accepted or recognized can pass witness anonymity orders under those inherent powers, the Courts of Sessions and Courts of Magistrates in our country cannot pass 'anonymity' orders unless such powers are conferred by the legislature.