Which High Court Can You Approach? Article 226(2), 'Cause of Action' and the Criminal Writ Petition

The situation, in human terms

Imagine a person living in Delhi who receives notice of an FIR registered in a police station in Bihar over a financial transaction or an online post. The person has never travelled to Bihar; the effects of the case — reputational harm, freezing of a bank account, professional consequences — are all felt in Delhi. Can that person file a writ petition asking the Delhi High Court to quash the FIR, or must they travel to the Patna High Court because that is where the police station and the trial court sit? This is not an abstract question. It decides which lawyers a litigant must hire, which bench hears the matter, and how quickly relief — if any — can be obtained. The answer lies in a constitutional provision originally designed for civil administrative disputes, now being stretched to fit the very different logic of criminal law.

What happened

Legal commentary has recently returned to a doctrinal fault line: courts are being asked, in writ petitions seeking to quash FIRs, challenge searches, or resist coercive criminal process, to apply the “cause of action” test under Article 226(2) of the Constitution — a test devised for civil litigation — to inherently criminal facts such as the registration of an FIR, the location of an arrest, or the seat of the investigating agency. Because the test was not designed with criminal process in mind, High Courts have had to work out, case by case, what counts as a “cause of action” when the underlying dispute is not a contract or a tort but an allegation of crime. The tension is compounded by the fact that criminal law already has its own, older, and more precise rules for deciding where a case may be tried, found in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), formerly the Code of Criminal Procedure.

The law behind it

Two constitutional provisions and a cluster of procedural rules govern this territory. Article 226(1) gives every High Court the power to issue writs — including habeas corpus, mandamus, prohibition, quo warranto and certiorari — “throughout the territories in relation to which it exercises jurisdiction,” for the enforcement of fundamental rights and for any other purpose. In its original form, this meant a petitioner generally had to approach the High Court within whose territory the respondent authority was physically located or functioned — the “seat” test.

Article 226(2) changed this. It provides that the power to issue writs may also be exercised by any High Court within whose territories the cause of action, wholly or in part, arises, notwithstanding that the seat of the government or authority, or the residence of the person against whom the writ is sought, is outside those territories. This clause was inserted precisely to prevent citizens from being forced to litigate only where a distant authority happens to sit, when the actual grievance and its consequences are felt elsewhere. “Cause of action” in this clause is a civil-law import: it refers to the bundle of essential facts which a petitioner must prove to succeed, and which — critically — must have a real and substantial connection to the case, not a trivial or incidental one, with the territory of the High Court being approached.

For comparison, Article 32 gives the Supreme Court its own writ jurisdiction for enforcement of fundamental rights, but because the Supreme Court's authority extends across all of India, the territorial cause-of-action puzzle that troubles High Courts under Article 226(2) does not arise in the same way before the apex court.

Criminal law, meanwhile, has never needed to borrow the civil “cause of action” idea, because it has always had its own rules for where a case may be inquired into or tried. Under the BNSS, the default rule in Section 197 is that an offence is ordinarily tried by a court within whose local jurisdiction it was committed. But criminal offences often straddle jurisdictions, and the Sanhita anticipates this: Section 199 allows an offence to be tried either where the act was done or where the consequence ensued, giving more than one forum concurrent competence. Section 198 deals generally with the place of inquiry or trial, while Section 200, Section 201 and Section 203 extend this logic to offences committed partly through relation to other offences, and to specific categories of triable offences. Section 202 is particularly significant in the digital age: it fixes the place of trial for offences committed through electronic communications, letters and similar means — a provision with obvious relevance to online FIRs of the kind in the opening example. Section 204 allows offences triable together to be tried at a single place, avoiding fragmentation. These provisions collectively show that criminal procedure already has a sophisticated, multi-forum jurisdiction scheme built for the realities of crime — arrest here, act there, consequence somewhere else — without needing to import the civil cause-of-action test at all.

The doctrinal difficulty arises because writ petitions challenging criminal process (quashing an FIR, restraining an arrest, or resisting a search) are filed under Article 226, not under the BNSS's own trial-jurisdiction scheme. A petitioner invoking Article 226(2) must therefore satisfy the civil cause-of-action test to establish that the High Court being approached has territorial competence, even though the underlying subject matter is governed by BNSS rules that use a different vocabulary (“place of offence,” “consequence ensuing”) to answer a similar question. Courts have had to reconcile the two frameworks, generally holding that for a writ court to accept jurisdiction, some integral and material fact founding the criminal complaint — not a peripheral or consequential fact — must have occurred within its territory.

How we got here

The insertion of clause (2) into Article 226 was meant to widen access to justice by letting people sue where the facts of their grievance actually happened, rather than forcing them to chase the authority to its seat. This worked well for classic administrative law disputes — a government order passed in Delhi but implemented and felt in another state, for instance. Criminal process, however, was never the paradigm case the amendment had in mind. FIRs, arrests and investigations are inherently territorial in a different sense, already regulated in fine detail by the criminal procedure code (now the BNSS). As litigants increasingly used writ jurisdiction to seek quashing of FIRs or interim protection against arrest — remedies not always available through ordinary criminal appeal or revision — courts were forced to ask which test should control: the civil cause-of-action test under Article 226(2), or the BNSS's own place-of-trial provisions. The absence of a single settled formula has meant continuing case-by-case adjudication rather than a bright-line rule.

What it means in practice

For an ordinary citizen facing an FIR registered outside their home state, the practical lesson is caution: filing a writ petition in a “convenient” High Court on the basis that some consequence — distress, loss of employment, damage to reputation — is felt there is unlikely to succeed unless a material and integral fact of the alleged offence itself occurred within that court's territory. Lawyers drafting such petitions must plead specific facts — where the transaction occurred, where the communication originated or was received, where the alleged act took place — rather than relying on generalised harm. For law students and judiciary aspirants, this is a classic point of intersection between constitutional law and criminal procedure: know both the civil-law pedigree of “cause of action” under Article 226(2) and the specific BNSS provisions on place of trial, and be able to explain why the two frameworks do not automatically align.

What to watch

This is an evolving area rather than a settled one. Expect continued High Court rulings refining what counts as a sufficient territorial nexus for criminal writ petitions, particularly for offences committed through electronic means where the “place” of an act is inherently diffuse. It is also worth watching how this cause-of-action inquiry interacts with the separate doctrine of forum non conveniens — the principle that a court may decline jurisdiction it otherwise has if another forum is clearly more appropriate — since both doctrines address the same underlying anxiety about forum shopping in writ litigation, from different directions. No outcome should be assumed in advance; the law here remains a matter of case-by-case judicial reasoning rather than a fixed formula.