Reference and Revision (Section 395-405 of CRPC)

Discuss the provisions relating to reference and revision.
(Apr 2021, Dec

2018)
Reference and Revision (Section 395-405 of CrPC)
Reference and revision under CrPC have been discussed in Chapter XXX from
sections 395 to 405. Section 395 and section 396 of the Criminal Procedure
Code deal with reference. And sections 397 to 405 discuss revision.
There is no statutory definition of reference provided in the Criminal

Procedure Code. Reference is a matter between two courts where the lower
court seeks the opinion of the High Court regarding an act, ordinance or
regulation.
Section 395. Reference to High Court. (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.
A reference arises when a case is before a trial court and such a case
includes a question relating to the validity of any regulation, ordinance or act
or any provision of the act, which is necessary for the determination of a
criminal case...Such an act, regulation or ordinance may be inoperative or
invalid but the Higher Court like Supreme Court or High Court has not
declared it
As such, the lower court or trial court shall refer to the High Court for its
cause or opinion. Such opinions or reasons may form the basis of the court’s
decision.
In such cases, the accused may be sent to the jail or released on the bail, as
there is pending of revert of opinion from the higher court.
Grounds for Reference under CrPC: Before sending a case for reference to
the High Court, the lower court shall satisfy itself that:
 The case pending before it involves the question as to the validity of an

Act, ordinance or regulation or any provision contained in any Act,
ordinance or regulation.
 The determination of such a question is necessary for the disposal of the
case.
 The lower court is of the opinion that such Act, ordinance, regulation or
provision is invalid or inoperative by the High Court or Supreme Court.
Then the lower court shall state its opinion and reason for the same and
refer the same to High Court for its decision.
Residuary Provision:
Section 395(2) of the Criminal Procedure Code states that the Court of
Session or Metropolitan Magistrate may refer for the decision of High Court
on any question of law arising in a case pending before it to which provision
of section 395(1) of the Criminal Procedure Code does not apply.
Section 395(1) of the Criminal Procedure Code requires every subordinate

court to refer the question as to validity to the High Court. Section 395(2) of
the Criminal Procedure Code provides discretion only to a Court of Session or
a Metropolitan Magistrate to refer for the decision of the High Court for any
question that arose in the hearing of the case before such court or
magistrate.
In Emperor vs Maula Fuzla Karim, the court held that reference under section
395(2) of the Criminal Procedure Code could be made only on a question of
law, not on a question of fact.
Procedure for Disposal of the Case:
Where a question has been referred to High Court, the High Court shall pass
order thereon.
The copies of such order shall be then sent to the lower court by whom
reference was made.
Such lower court shall then dispose of the case in the light of the reference
order given by the High Court.
According to section 395(3) of the Criminal Procedure Code, when the case is
pending for reference in the High Court, the court may either commit the
accused to jail or release him on bail.
According to section 396(2) of the Criminal Procedure Code, the High Court
may direct by whom the cost of reference will be paid.
Revision: Nowhere in Criminal Procedure Code, 1973, “Revision” has been
defined but in Section 397 of code, empowers the High Court or any Sessions
Court to call, examine the records of any proceeding.
Section 397 CrPC – Call Records for Revision:

Under section 397 CrPC, the High Court and Court of Session have been
empowered to call for and examine the records of any proceeding and satisfy
oneself as to the:
(a) Correctness, legality or propriety (correctness) of any finding, sentence
or order recorded or passed.
(b) Regularity of any proceeding of an inferior court.
They have the power to direct the execution of any sentence or suspend or
stay the lower court’s order during the pendency of revision or during the
examination of record. The court may also direct to release the accused on
bail by executing the bonds if the accused is in custody.
No Revision in Certain Orders: Revision is not maintainable against:
(a) orders which are appealable.
(b) Interlocutory order: The order which is temporary in nature and does
not determine the substantial rights and liabilities of the parties.
Section 398 CrPC – Power to Order Inquiry

Section 398 of the Criminal Procedure Code provides for an order of
inquiry that can be made after examination of record as given under
section 397 of CrPC or otherwise.
The Revisional Court (Court of Session, High Court) shall order Chief
Judicial Magistrate to inquire himself or through subordinate to make a
further inquiry regarding:
(a) dismissal of a complaint under section 203, 204(4) of the Criminal
Procedure Code.
(b) discharge of accused. Here, no order of further inquiry should be passed
without giving an opportunity to the accused to showcase why a further
inquiry should not be directed.
Section 399 CrPC – Power of Session Court of Revision

Court of Session has been empowered to exercise the same powers as given
to High Court under section 401(1),(2),(3),(4),(5) of the Criminal Procedure
Code.
When the Court of Session transfers a case to an additional session judge,

the same powers can be exercised as given to the Court of Session under
section 400 of the Criminal Procedure Code.
Section 401 CrPC – High Court’s Power of Revision

According to section 401(1) of the Criminal Procedure Code, High Court has
all the powers which are conferred to the court of appeal under sections 386,
..389, 390, 391 of the Criminal Procedure Code.
High Court also has the power that Court of Session has under section 307
of Criminal Procedure Code, that is, power to pardon.
According to section 401(2) of the Criminal Procedure Code, the

reasonable opportunity of being heard will be given to the person against
whom the hearing of revision is filed.
According to section 401(3) of the Criminal Procedure Code, the court

exercising revisional power is not authorized to convert a finding of
acquittal into one of conviction.
According to section 401(4) of the Criminal Procedure Code, where an

order is appealable, no proceeding by way of revision shall be entertained.
According to section 401(5) of the Criminal Procedure Code,
 Where a person had a right to appeal, but by genuine mistake, an
application of revision has been made to the High Court.
 And the High Court is satisfied that such application was made under the
erroneous belief (that no appeal lies).
If High Court thinks it is in the interest of justice, the revision application

shall be treated as a petition of appeal and dealt with accordingly.
Section 402 CrPC – Power of High Court to Withdraw or Transfer Revision

Case
According to section 402(1) of the Criminal Procedure Code, when one or
more person are convicted in the same trial, and one person files an
application for revision to the Court of Session and the other at the High
Court, then the High Court in such circumstances should decide as to which
of the two courts should deal with the matter, keeping in mind:
(a) general convenience of parties.
(b) severity/importance of questions involved.
According to section 402(2) of the Criminal Procedure Code, when the

High Court decides to hear the revision itself, the high court shall deal
with the same as if the application was duly made to High Court itself.
According to section 402(3) of the Criminal Procedure Code, when the

High Court decides to transfer application to the Court of Session, the
judge shall deal with it as if the application was duly made to it.
According to section 402(4) of the Criminal Procedure Code, when

revision is transferred to Court of Session, no further application shall lie
to High Court or any other Court, whose application was dispersed by
Court of Session.

Reference and Revision (Section 395-405 of CRPC)

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Discuss the provisions relating to reference and revision.

(Apr 2021, Dec

Reference and Revision (Section 395-405 of CrPC)

There is no statutory definition of reference provided in the Criminal

 The case pending before it involves the question as to the validity of an

Section 395(1) of the Criminal Procedure Code requires every subordinate

Section 397 CrPC – Call Records for Revision:

Section 398 CrPC – Power to Order Inquiry

Section 399 CrPC – Power of Session Court of Revision

When the Court of Session transfers a case to an additional session judge,

Section 401 CrPC – High Court’s Power of Revision

According to section 401(2) of the Criminal Procedure Code, the

According to section 401(3) of the Criminal Procedure Code, the court

According to section 401(4) of the Criminal Procedure Code, where an

If High Court thinks it is in the interest of justice, the revision application

Section 402 CrPC – Power of High Court to Withdraw or Transfer Revision

According to section 402(2) of the Criminal Procedure Code, when the

According to section 402(3) of the Criminal Procedure Code, when the

According to section 402(4) of the Criminal Procedure Code, when

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