Section 396 CrPC - Disposal of Case According to Decision of High Court
Section 396 of the Code of Criminal Procedure, 1973 explains what happens after a criminal court refers a question of law to the High Court. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 437 BNSS.
Section 396 CrPC - statutory text
Disposal of case according to decision of High Court.
(1) When a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a copy of such order to be sent to the Court by which the reference was made, which shall dispose of the case conformably to the said order.
(2) The High Court may direct by whom the costs of such reference shall be paid.
This provision operated together with Section 395 CrPC, which provided for references of legal questions to the High Court.
Section 437 BNSS, 2023 - corresponding current provision
Section 437: Disposal of case according to decision of High Court. The wording of Section 437 BNSS retains the two substantive rules contained in Section 396 CrPC:
(1) When a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a copy of such order to be sent to the Court by which the reference was made, which shall dispose of the case conformably to the said order.
(2) The High Court may direct by whom the costs of such reference shall be paid.
The connected reference-making provision is Section 436 BNSS, corresponding to Section 395 CrPC. These provisions fall within Chapter XXXII of the BNSS, dealing with reference and revision.
Meaning and procedure under Section 396 CrPC and Section 437 BNSS
1. A question of law is referred to the High Court
When the statutory conditions for a reference are met, the court hearing the criminal case refers the legal question to the High Court. The conditions and powers for making the reference are set out in Section 395 CrPC or Section 436 BNSS, as applicable.
2. The High Court decides the referred question
The High Court considers the reference and passes an order it considers appropriate. Section 396(1) CrPC and Section 437(1) BNSS address the disposal of that reference; they do not create a general right for a litigant to bypass ordinary criminal procedure.
3. The referring court receives the order
A copy of the High Court's order is sent to the court that made the reference. This ensures that the referring court has the High Court's decision before proceeding.
4. The referring court disposes of the case accordingly
The referring court must dispose of the pending case in conformity with the High Court's order. It cannot disregard the determination on the referred question. The final outcome still depends on the applicable law, facts, and the terms of the High Court's order.
5. The High Court may allocate costs
Under subsection (2), the High Court may direct who should pay the costs of the reference. This is a discretionary power; the provision does not impose an automatic costs order.
Illustrative example
Suppose a criminal court refers a necessary question concerning the validity of a statutory provision to the High Court in accordance with the applicable reference procedure. Once the High Court decides that question and communicates its order, the referring court proceeds with the case consistently with that decision. The High Court may also determine responsibility for the costs of the reference.
Applicability after 1 July 2024
The BNSS repealed the CrPC, 1973, but Section 531 BNSS preserves the application of the former Code to specified appeals, applications, trials, inquiries and investigations pending immediately before commencement. Consequently, the procedural law applicable to a particular reference depends on the proceeding and the statutory saving provisions, not simply the date on which the High Court issues its order.
Frequently asked questions
What is Section 396 CrPC?
It provides that the High Court shall decide a referred question and send its order to the referring court, which must dispose of the case accordingly. The High Court may also direct payment of the reference costs.
Which BNSS section corresponds to Section 396 CrPC?
Section 437 of the Bharatiya Nagarik Suraksha Sanhita, 2023, titled "Disposal of case according to decision of High Court".
Can the referring court ignore the High Court's order?
No. The statute expressly requires the referring court to dispose of the case in conformity with the High Court's order on the reference.
Who pays the costs of a High Court reference?
The High Court may decide who should pay the costs under Section 396(2) CrPC or Section 437(2) BNSS.
Does Section 396 CrPC still apply after the BNSS came into force?
It may remain applicable to proceedings protected by the repeal-and-savings provisions of Section 531 BNSS. The procedural history of the particular matter must be examined.
Official legal sources
- Bureau of Police Research and Development - Bharatiya Nagarik Suraksha Sanhita, 2023 (official PDF)
- India Code - Central Acts and statutory text
- Section 531 BNSS - Repeal and savings (Government of India)
Legal information: This article explains the statutory framework and is not a substitute for case-specific legal advice. Check applicable amendments and court orders for an individual proceeding.