What do you mean by `Reference’? Under what circumstances and in which Court reference can be made?

Question: What do you mean by Reference? Under what circumstances and in which Court reference can be made? [MPHJS 2018]

Find the answer only on Legal Bites. [What do you mean by Reference? Under what circumstances and in which Court reference can be made?]

Answer

The term ‘reference’ means to transfer or send something for the opinion of the receiver on the matter. In this situation, the reference power of High Courts means that the High Court is empowered to take cases referred to it by subordinate criminal courts. It means that the Courts of Magistrates and Sessions Judge may, on fulfilling the requirement under the CrPC, refer any case to the High Court of the State stating the questions referred.

Section 395 of CrPC deals with the reference powers of the High Courts in a State. Under this provision, the subordinate courts are allowed to refer a case to the High Court for its opinion if the subordinate court considers it necessary. The provision entails two situations when the case can be referred to the High Court:

1. When the validity of an Act, Ordinance, or Regulation is doubtful and the court considers it invalid.
2. When, in any case pending before the subordinate court, the court believes that there is a question of law that needs to be addressed by the High Court.

The validity of Act, Ordinance, or Regulation

According to Section 395(1) of CrPC, when a case is pending before the trial and it involves a question with respect to the validity of any law or rules and regulation in the country and in the opinion of the court such law is invalid but it is not yet declared invalid by the superior courts, therefore, the trial court can refer the matter to the superior courts to check the validity of such laws.

The essential requirements for reference under this section are:

• The case must be pending before the trial court

It is an essential requirement that the case in which a question of the validity of law must be pending and not already decided by the court. The provision does not provide for any specific stage of the proceeding when the case can be referred and thus, the general practice is that a trial court can refer the matter to High Court at any stage of the proceeding when it considers it necessary.

However, if the trial or case is disposed of, it cannot be then referred by way of reference. It has to be taken to superior only to the parties by way of revision.

• It must involve a question that directly or indirectly challenges the validity of a law

The main question before a trial court is always whether the accused person is guilty of the charged offence or not, the validity of a law is not an issue before the trial court. However, during the course of the trial, arguments may be raised with respect to the validity of a law or ordinance under which the person is accused of an offence.

• The law must be in the form of an Act, Ordinance, or Regulation

The provision does not require a law to specifically be primary legislation. The court can also refer to matters with respect to an Ordinance or delegated legislation. For instance, in the first case under the Negotiable Instruments (Amendment) Ordinance, 2015, i.e. Dasrathroop Singh Rathore v. State of Maharashtra, the objection was raised that the jurisdiction to courts given under the ordinance is not valid.

• The court must believe that such a law is invalid

The court must have reasons to believe that the law is invalid by virtue of it being arbitrary or discriminatory or otherwise violating the principles of natural justice or any provision of the Constitution.

The validity of the law must not have been already settled by a High Court or the Supreme Court

• Case Involving Question of Law

According to Section 395(2) CrPC, if a case does not fall under clause 1 or does not fulfill any or more of the requirements abovementioned, the trial court can still refer the matter to High Court under clause 2 if the case involves a question of law. A question of law means which requires the application of certain legal principles and not one where the existence of a fact is in dispute.

For instance, say a case is based on the extra-judicial confession given by the accused person to his friend who informs the police and deposes before the court. Here, the question of whether the confession was true and voluntary is a question of fact and whether the court can convict the accused based on such confession is a question of law.

• Revisionary Powers of Sessions Court and High Court

Revision means where a higher court calls for the record of the case decided by a court subordinate to it to check whether the jurisdiction, procedure, and legal principles were duly followed while disposing of the case. Revision is different from appeal and review in several ways.

On one hand, revision means checking the judgment of a lower court only with respect to the procedural and jurisdictional aspects whereas in appeal the entire case is heard again. Further, in revision, there need not be a hearing conducted. The court can call for records and decide on that basis. In appeal, there is always a separate hearing from the very beginning. Lastly, review means analysis of a judgment by the court which gave the judgment.

---

Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
6. CRPC Mains Questions Series Part VI: Important Questions
7. CRPC Mains Questions Series Part VII: Important Questions
8. CRPC Mains Questions Series Part VIII: Important Questions
9. CRPC Mains Questions Series Part IX: Important Questions
10. CRPC Mains Questions Series Part X: Important Questions
11. CRPC Mains Questions Series Part XI: Important Questions