Section 395 CrPC - Reference to High Court | Section 436 BNSS
Section 395 of the Code of Criminal Procedure, 1973 provides a mechanism for a criminal court to refer certain questions of law to the High Court. The corresponding current provision is Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
What is a reference to the High Court?
A reference is a statutory process by which a criminal court sends a legal question arising in a pending case to the jurisdictional High Court for determination. It is distinct from an appeal, which challenges a judgment or order, and from revision, which permits supervisory scrutiny of certain criminal court proceedings.
The provision is designed to ensure that questions concerning the validity of legislation, and certain other legal questions, receive authoritative consideration before the trial court completes the case.
Section 436 BNSS, 2023 - Reference to High Court
Sub-section (1): Mandatory reference concerning validity of legislation
A court must make a reference when all the statutory conditions exist: a case is pending; the validity of an Act, Ordinance, Regulation or provision is material to disposing of the case; the court considers that measure invalid or inoperative; and neither the jurisdictional High Court nor the Supreme Court has already declared it so. The referring court must set out its opinion and reasons.
Explanation: For this section, "Regulation" means a Regulation as defined in the General Clauses Act, 1897, or a State General Clauses Act.
Sub-section (2): Discretionary reference by Court of Session
Where sub-section (1) does not apply, a Court of Session may refer another question of law arising in a pending case to the High Court if it considers a reference appropriate. Unlike the mandatory reference under sub-section (1), this power is discretionary.
Sub-section (3): Custody or bail pending the reference
A court making a reference under either sub-section may, pending the High Court's decision, commit the accused to jail or release the accused on bail to appear when called upon. This provision does not mean detention is automatic; the decision must comply with the applicable legal safeguards.
Section 395 CrPC, 1973 - Original statutory provision
(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
Explanation. In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.
Section 395 CrPC and Section 436 BNSS - Key difference
| Issue | Section 395 CrPC | Section 436 BNSS |
|---|---|---|
| Mandatory reference on validity | Provided in sub-section (1) | Retained in sub-section (1) |
| Discretionary reference | Court of Session or Metropolitan Magistrate | Court of Session only |
| Custody or bail pending reference | Sub-section (3) | Retained in sub-section (3) |
| General application | Legacy proceedings, subject to savings | New code in force from 1 July 2024 |
The express reference to a Metropolitan Magistrate in the discretionary power under former Section 395(2) has been omitted from Section 436(2) BNSS. This distinction should not be overlooked when citing the current law.
How does a reference to the High Court work?
- Identify the legal issue: The court identifies a question arising in a pending criminal case.
- Apply the statutory test: The court determines whether a mandatory reference under sub-section (1), or a permissible discretionary reference under sub-section (2), is involved.
- Record reasons: For a mandatory validity reference, the court states its opinion and reasons in a case submitted to the High Court.
- Address interim custody: The court considers bail or custody pending the High Court's decision under sub-section (3).
- Act on the High Court's order: Under Section 396 CrPC or corresponding Section 437 BNSS, the referring court disposes of the case in conformity with the High Court's order.
Example
Suppose a trial court considers the validity of a statutory provision decisive for a pending criminal case and believes it invalid, although neither the Supreme Court nor its High Court has declared it invalid. The court must state its reasons and refer the issue to the High Court rather than simply disregard the provision on its own.
Transitional application
Section 531 BNSS repeals the CrPC but contains savings for specified proceedings pending immediately before the BNSS commencement. Whether Section 395 CrPC or Section 436 BNSS governs a particular reference depends on the statutory savings and the procedural history of the case.
Frequently asked questions
What is a reference to the High Court?
It is a procedure by which a criminal court refers a specified legal question to the High Court for its decision while a case is pending.
When is a reference mandatory under Section 436(1) BNSS?
When the court considers a validity question essential to deciding the case, believes the provision invalid or inoperative, and neither the jurisdictional High Court nor Supreme Court has already declared it so.
Can a Sessions Court refer another question of law?
Yes. Section 436(2) BNSS permits a Court of Session to refer a question of law in a pending case where subsection (1) does not apply.
What happens to the accused while the reference is pending?
Section 436(3) permits the referring court to commit the accused to jail or release the accused on bail to appear when called upon; the court must exercise its powers lawfully.
Does Section 395 CrPC still apply?
The CrPC was repealed on 1 July 2024, but the BNSS savings provision may preserve CrPC procedure for proceedings pending immediately before commencement. Applicability depends on the facts and procedural stage.
Official legal sources and further reading
Read the Bharatiya Nagarik Suraksha Sanhita, 2023 - government-hosted text (PDF), including Sections 436, 437 and 531. For official consolidated legislation, consult the India Code portal and search for Act 46 of 2023 and the Code of Criminal Procedure, 1973. The General Clauses Act, 1897 is relevant to the definition of Regulation.
This article provides general legal information. Court orders, amendments and transitional provisions should be checked for the particular case.