CRIMINAL PROCEDURE – Jurisdiction of the High Court – Condition Precedent under Section 185(b) of the Criminal Procedure Code
Ratio Decidendi
Per Onu, JSC, in Bature v. State (1994) NLC-221992(SC) at p. 7; Paras C–D:
"Now, section 185(b) of the Criminal Procedure Code under which the Criminal Procedure (Applications for Leave to Prefer a charge in the High Court) Rules, 1970 (hereinafter referred to as the Rules) provides mandatorily that 'No person shall be tried by the High Court; (a) (not applicable) (b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.'"
Explanation / Scope
Section 185(b) establishes a mandatory jurisdictional prerequisite for High Court criminal trials. Before High Court trial, one of two conditions must be met: (1) Preliminary inquiry must be held (lower court examines evidence and commits accused for trial); or (2) Judge’s leave must be obtained to prefer charges without preliminary inquiry. “Mandatorily” means this isn’t discretionary—the requirement is absolute. Without either preliminary inquiry or leave, the High Court lacks jurisdiction to try the accused. This serves: protecting accused from frivolous prosecutions (preliminary inquiry screens cases), ensuring proper foundation for serious charges, and maintaining criminal procedure integrity. Obtaining leave requires: formal application to a judge, showing cause why preliminary inquiry should be dispensed with, and judicial authorization. Failure to comply renders: the trial without jurisdiction, any conviction voidable, and proceedings susceptible to challenge. This condition precedent must be satisfied before arraignment—it’s a threshold requirement, not a procedural technicality. Courts must verify compliance before proceeding with trial.