Section 436, BNSS 2023

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 one, 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.

Section 437. 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.

⚠ Why a reference exists at all

A subordinate court cannot declare a law invalid. That power belongs to the constitutional courts, and a Magistrate or a Sessions Judge who thinks a provision is bad has no means of acting on that opinion.

He cannot apply a law he believes to be void; and he cannot declare it void. The reference resolves that difficulty by permitting him to state a case and obtain an authoritative ruling.

Three conditions must be satisfied: the case must involve a question as to validity; the determination of that question must be necessary for the disposal of the case; and the Court must itself be of opinion that the provision is invalid or inoperative. A mere argument by a party that a law is bad does not require a reference.

And the question must not already have been decided by the High Court to which the Court is subordinate, or by the Supreme Court — in which case there is nothing to refer.

Section 438, BNSS 2023

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court; and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

📖 K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788

Facts: The High Court, in revision at the instance of a private party, set aside an order of acquittal and directed a retrial. The question was the extent of the revisional power in relation to an acquittal, and the circumstances in which it may properly be exercised.

Held: The Supreme Court held that although the revisional court has the power to set aside an acquittal and order a retrial, it may not convert a finding of acquittal into one of conviction, and the power to order a retrial is to be exercised only in exceptional cases where there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice. The Court gave examples: where the trial court had no jurisdiction to try the case; where it shut out evidence which the prosecution wished to produce; where the appellate court wrongly excluded admissible evidence; or where a material piece of evidence was overlooked by both courts. It held that it is not open to the High Court in revision to reappraise the evidence and reach a different conclusion on the facts merely because it takes a different view, and that the jurisdiction is not to be used to give a private complainant what amounts to an appeal against acquittal which the statute does not give him.

Ratio: A revisional court may set aside an acquittal and order a retrial, but only in exceptional cases involving a glaring defect in procedure or a manifest error of law causing a flagrant miscarriage of justice. It may not convert an acquittal into a conviction or reappraise the evidence.

📖 State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452

Facts: The High Court in revision re-examined the evidence and substituted its own findings for those of the courts below. The Supreme Court considered the limits of the revisional jurisdiction as against the appellate jurisdiction.

Held: The Supreme Court held that in its revisional jurisdiction the High Court is required only to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order, and the regularity of the proceedings — a jurisdiction narrower than the appellate, in which the Court is not entitled to reappreciate the evidence and come to its own conclusion on it. Ordinarily it would not be justified in interfering with a concurrent finding of fact, and the jurisdiction is to be exercised only where there is a glaring defect in the procedure, or a manifest error on a point of law, or a flagrant miscarriage of justice. The Court held that where the High Court exceeds those limits and decides the case as though on appeal, the order cannot be sustained, since the legislature has deliberately conferred a supervisory and not an appellate power.

Ratio: In revision the High Court satisfies itself as to correctness, legality, propriety and regularity. It is not entitled to reappreciate evidence or interfere with concurrent findings of fact; the jurisdiction is supervisory, not appellate.

⚠ The bar in section 438(2), and the three categories of order

Section 438(2) provides that the revisional powers shall not be exercised in relation to any interlocutory order. The purpose is to prevent a trial being fragmented by challenges to every procedural step on the way through the superior courts.

But “interlocutory” is read in its restricted sense — an order of a purely interim or procedural character which does not touch the important rights or liabilities of the parties. Not every order that is not final is interlocutory for this purpose.

Hence the three categories: final orders, purely interlocutory orders, and intermediate orders — the last being those which, decided the other way, would have concluded the proceeding. The framing of a charge is the classic instance, and a revision lies against it.

The working test is a single question: what would have happened if the order had gone the other way? If the proceeding would have ended, the bar does not apply.

The position stated shortly

1. Chapter XXXII contains two different jurisdictions: reference on the validity of a law (sections 436 and 437), and revision (sections 438 to 445).

2. A reference lies where a case involves a question as to the validity of an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and the Court is itself of opinion that it is invalid or inoperative and it has not been so declared by the High Court or the Supreme Court.

3. It exists because a subordinate court cannot declare a law invalid: it may neither apply a law it believes void nor strike it down. The High Court decides, and the referring Court disposes conformably.

4. Section 438: the High Court or any Sessions Judge may call for and examine the record of any inferior Criminal Court to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order, and the regularity of the proceedings.

5. Section 438(2): the powers shall not be exercised in relation to any interlocutory order — read in its restricted sense, so that an intermediate order such as the framing of a charge is not within the bar.

6. Section 438(3): where an application has been made to one of the High Court or the Sessions Judge, no further application by the same person shall be entertained by the other. There is no second revision.

7. Section 442: the High Court may exercise the powers of a Court of Appeal under sections 427, 430, 431 and 432 — but no sentence shall be enhanced without an opportunity of being heard, and an acquittal shall not be converted into a conviction.

8. A revisional court may set aside an acquittal and order a retrial, but only in exceptional cases — a glaring defect in procedure, a manifest error of law, a flagrant miscarriage of justice: K. Chinnaswamy Reddy.

9. It is not entitled to reappreciate the evidence or to interfere with concurrent findings of fact. The jurisdiction is supervisory, not appellate: Puttumana Illath.

10. Section 444: no party has a right to be heard in revision, though the Court may hear any party. Section 439 permits a direction for further inquiry into a dismissed complaint or a discharged accused — the latter only after an opportunity to show cause.