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CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

Project Work on Criminal law-II

TOPIC:- PROVISION RELATED TO

REFERENCE .

Name : PRABHAKAR KUMAR

Course : BALLB(HONS.)
Semester : 4TH
Enrolment No. : CUSB1613125036
Subject : Criminal Law II (Crpc.)
Submitted To : Mr. Pawan kumar Mishra.
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ACKNOWLEDGEMENT
It is a great pleasure for me to present the final draft of the project
topic. I am very much obliged to my revered teacher Mr. Pawan Kumar
Mishra( Associate Professor) of Central University of South Bihar, Gaya
who has given me a task to complete the final draft of the project work. I
am very much helped by him regarding the formation of this final draft.

I express my heartfelt indebtedness to Mr. Pawan Kr. Mishra who

showed me the path and helped me to understand the project topic. It was
not possible for me to make the final draft if I was not being helped by him.
He acted as my mentor and also a guide to help me to understand the
Provisions related to reference of Cr.P.C.

I would like to express my gratitude towards my parents for their

kind co-operation and encouragement which help me in completion of this
final draft.

I would like to express my special gratitude and thanks to the

computer lab assistant who provided me all the facilities regarding the
conditioned computer with a good wi-fi net.

My thanks and appreciations also go to my colleague in developing

the project and people who have willingly helped me out with their
abilities.

Thanks
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PREFACE
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index

TOPIC Pg no.

01. INTRODUCTION
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TABLE OF CASES

 Beal v. Kelley
 State of Punjab v. Major singh
 Aman Kumar v. State of Haryana
 Pandurang Sitaram Bhagwat v. State of Maharastra
 Ramdas v. State of West Bengal
 Baldeo Prasad Singh v. State
 Rupan Deol Bajaj v. K.P.S. Gill
 State of Karnataka v Rangaswamy
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INTRODUCTION

The topic “reference” and “revision” deal under Chapter XXX of criminal procedure court.
This chapter deals with two important jurisdictions viz. of (1) reference and (2) revision.

Section 395 deals with jurisdiction called reference. It can be invoked by a court or
metropolitan magistrate. In both the cases the reference can be only made on the validity of
any act, ordinance or regulation or provision, thereof or on question of law and must arise in
the hearing of case. There should be subjective satisfaction of magistrate of his own. The
main purpose of section 395 is to obviate any difficulties which have arisen at the time of
trial or hearing of a case before a magistrate or District court with regard to the constitutional
validity of a provision and entire disposal of case is dependent upon determination of such
constitutional validity then only magistrate can refer the matter to the high court. This chapter
also deals with other provisions contained in section 395 to 396 which enables inferior court
to consult high court on matter of law in certain circumstances. The magistrate must himself
arrive at a subjective satisfaction that the particular case involves the testing of a vires of any
act or regulation, then only he can refer the matter.

Under section 395(1) a reference is made by a subordinate to the High Court. Sub- section
(2) of section 395 comes into play when the question of law arises in case pending before a
session court or a metropolitan Magistrate, and because it or he find himself unable to decide
that question or things that the matter is so important that the opinion of the High Court
should be obtained there on ,it or he can refer the matter to the high court for its opinion.

Generally we can say that the provision of reference provided by Cr.PC of section 395 is
treated as the matter of opinion of High Court or matter of determining the constitutional
validity .

MEANING AND DEFINITION:

REFERENCE:-

Reference can be made under section 395(1); for that some conditions are required. The
conditions are as under:
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1) The court must be satisfied that the question of validity of an act is raised in a case
pending before it.

2) The court must be satisfied that the determination of that point is necessary for the
disposal of the case.

3) The court must be of the opinion that such act, ordinance or regulation is invalid or
inoperative, but has not been so declared by the High Court or the Supreme Court.

4) Before making a reference to the High Court, the court shall state a case setting out its
opinion and the reasons thereof.

A reference shall not be made because, on the question referred, a High Court other than the
one under whose jurisdiction the referring court is functioning, has taken a different view
from the one taken by the latter High Court.

Reference will not fall under subsection (1) of section 395 if the question involved is not to
as the validity of any act, ordinance or regulation or any other provision contained in any act,
ordinance or regulation. A reference under this section can be made whenever and wherever
the validity of an Act is raised.

Three things are required under sub-section (2)1. First, it is only a court of session or a
Metropolitan Magistrate that can act under the section and no other court. Secondly, the
reference can be made only on a question of law and not on question of fact. The accused by
filing an application cannot invoke the power of magistrate on his own.

Reference under this section shall not be made as a matter of course. The court should find it
impossible to decide the question itself. Reference can be made to the high Court only if the
question raised has not been decided by the High Court. The Special judge appointed under
section 6 of the Criminal Law (Amendment) Act, 1952 is also empowered to make reference
under this section. When the Session Judge has called for the records of a case before a
Magistrate under section 397, the case is still pending before the Magistrate. In that event, the
Session Judge cannot make a reference under section 395. When the reference under the

1
“B.B. Mitra”, “Code of Criminal Procedure”, “Kamal Law House,Kolkata”, “vol-2’, 23rd edition,( pg no. -2085-
2086)
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section is to be made under section 395 (2) of the code, the conditions required to be satisfied
are as under:-

 The genuine question of law has arisen in the matter pending before the court.

 The court has to record the satisfaction that it is a fit case to refer the matter to the
High Court for its decision on such case.

 Such question of law must have arisen in the hearing of the case before the court.

Therefore, sub-section (2) comes into play when a question of law arises in a case pending
before a Session Court or a Metropolitan Magistrate or he finds himself unable to decide that
question or thinks that the matter is so important that opinion of the High Court should be
obtained. A reference under this section cannot be made before the hearing of a case. Courts
should be slow to make a reference to the High Court unless there is manifest error of law or
the case involves a matter of principle or unless there has been a serious failure of justice,
unless in short the court is of the opinion that public interest demands that there should be
intervention by the High Court2. The power of reference is confined to the question of law
which the judges or Magistrates are required to decide in order to perform their duty
regarding disposing of case. Opinions of High Courts are not obtained on abstract question of
law. Sub-section (3) also deals with the powers of the referring court to submit the accused to
jail or to release him on bail.

CORRESPONDING OLD LAW

This section reproduce word for word s.432 of the 1898 code with only minor changes in the
Explanation to sub-s (1)3.

There are only two minor changes in the section :

(i) In the Explanation to sub-s (1) , the words “of the Bengal, Bombay or
Madras code or Regulation” after the words “means any regulation”
have been omitted.

2
“Ratanlal & Dhirajlal”, “Criminal Procedure Code”, “Lexis Nexis”, “Student edition”,( pg no.-708)
3
“ Sohoni”, Criminal Procedure Code”, “Lexis Nexis”,”21 edition”
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(ii) In Sub-s (2) the words “A court of session or a Metropolitan

magistrate” have been substituted for “ a presidency magistrate” the
words “it or” added before the pronoun “He” in the first line and
before “him” in the second line.

PROVISIONS UNDER CRIMINAL PROCEDURE CODE4:

REFERENCE:

SECTION 395 OF CRPC:

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 therefore,
and refer same for decision of 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.

4
“Professionals”, “the Code of Criminal Procedure,1973”, (pg no.-187-188)
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SECTION 396 0F 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.

RELATIVE SCOPE OF THIS SECTION AND ARTICLE 228 OF THE

CONSTITUTION.

Article 228 of the constitution and this section of this code do not cover the ground , and it
cannot be said that the section controlled art 228. In one sense this section is wider in its
effect ,and in another it is narrow than art 228 . Art 228 relates to case which involve the
substantial question of law as to the interpretation of the constitution, the determination of
which is necessary for the disposal of the case. This section relates to the validity of any act,
ordinance, Regulation, etc., and is not confined merely to an interpretation of the constitution
or the Government of India Act 1935. Article 228 applies as soon as the case involve the
substantial question of law as to interpretation of the constitution, the determition of which is
necessary for the disposal of the case. The section applies when not merely there is a question
as to validity of any act ,ordinance, regulation ,etc,. the determination of which is necessary
for the disposal of the case , but when the court is of opinion that the Act,
Ordinance,Regulation , etc ,. is invalid or inoperative but has not been declared by the High
court and the Supreme court. Therefore the scope and effect of the section and Article 228 are
not the same: they do not cover the same ground ,and one does not necessary control other .

JUDICIAL DECISIONS:

Most Important Differences between “Reference” and “Revision” are as

follows:

Reference:
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1. Section 395-396 and Order 46 deal with reference

2. The object of making a reference is to enable the subordinate courts to obtain the opinion
of the High Court in advance on a question of law in non-appealable cases, and thereby to
avoid the commission of an error which cannot be remedied later on.
3. The case is referred to the High Court by the subordinate Court to that High Court. The
party is not entitled to make a reference.
4. The grounds of reference relate to reasonable doubt on a ‘question of law’ or entertainment
of reasonable doubt by the court .
5. It is of consultative nature from subordinate Court to High Court.

Revision:

1. Section 397 to 401 deals with revision.

2. The object of revision is to prevent the subordinate courts from acting arbitrarily,
capriciously and illegally or irregularly in the exercise of their jurisdiction.
3. In revision, the jurisdiction of the High Court is invoked either by the aggrieved party or
by the High Court suo motu.
4. The grounds for revision relate to ‘jurisdictional errors’ of the subordinate court.
5. it is of commanding nature from High Court to its subordinate courts.

CONCLUSION:
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BIBILIOGRAPHY
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www.shareyouressays.com/.../

 http//.lawyerscubindia.com

 http//.www.legalindia.in

 www.advocatekhoj.in

 http//.

 www.indiankanoon.in
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