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. We have already covered revision in a separate post. So, in this law note, let us focus on understanding what is reference under CrPC.
Note: Reference can be done only at High Court. In comparison, revision can be done at High Court as well as the Court of Session.
Reference – Meaning under CrPC
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.
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.
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