Calling for records to exercise powers of revision
Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with calling for records to exercise powers of revision. 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, r The Act came into force on 01 Jul 2024.
(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 his own bond or bail bond pending the examination of the record.
Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 439.
(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.
Section 438, The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Replaces a provision of the Code of Criminal Procedure
CRPC 397 Calling for records to exercise powers of revision Text carried over almost unchanged 99%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Sanjay Kumar Rai v. State of Uttar Pradesh
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Judgment of Main Case order-4.pdf 2021-05-07 DATE VERIFIED. Crl A 472/2021. Surya Kant. Magistrate warrant-case discharge under s.239 is not an interlocutory order; High Court revision under s.397 lies. The trial court is not a post office at the charge stage (Prafulla Kumar Samal on 227 by analogy). Do not map as 227 — that teaching file is Suresh Rajan.
On this section: Successor of CrPC 397 (mapping.csv near-identical, score 0.9924). The revision-against-refusal-of-discharge holding carries to BNSS 438.
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Honnaiah T. H vs The State of Karnataka
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
An informant/injured victim has the legal standing to file a criminal revision petition challenging an order passed during trial, provided the order is not merely interlocutory but substantially affects the rights of the parties or could result in gross miscarriage of justice. The test for determining whether an order is interlocutory is whether it is of a purely interim or temporary nature that does not decide or touch upon important rights or liabilities of parties. Any order that substantially affects the rights of parties, such as an order refusing to mark crucial evidence as an exhibit, is not interlocutory and is therefore subject to revision. The revisional jurisdiction of the High Court under Section 397 read with Section 401 CrPC can be exercised at the instance of a private complainant or informant where the trial court has wrongly shut out evidence or committed a manifest illegality that could result in gross miscarriage of justice.
On this section: Governs the revisional jurisdiction of the High Court. Section 397(2) bars revision against interlocutory orders. The Court clarified that this bar applies only to orders that are purely interim or temporary in nature.
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The State of Kerala vs K. Ajith
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Elected representatives cannot claim immunity from criminal law on grounds of parliamentary privilege. Acts of destruction of public property committed by MLAs during protest inside the legislative assembly are not protected under Article 194 of the Constitution as they do not constitute essential legislative functions or proceedings of the House. The Public Prosecutor's power to withdraw prosecution under Section 321 CrPC must be exercised in furtherance of broad ends of public justice, and the court's supervisory function requires it to ensure that the application is made in good faith and does not suffer from improprieties or illegalities that would cause manifest injustice. Prior sanction of the Speaker is not required for prosecution of MLAs for offences committed within the assembly except where specifically mandated by statute such as Section 19 of the Prevention of Corruption Act. The gravity of offence involving destruction of public property and its impact on public life must be considered when determining whether withdrawal of prosecution subserves administration of justice.
On this section: Revisional jurisdiction of High Court; High Court can interfere to correct errors of law in withdrawal decisions
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State of Rajasthan vs Kishan Singh
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a High Court is reviewing an order framing charges in exercise of its revisional jurisdiction under Section 397 of the Criminal Procedure Code, it must not substitute its own opinion regarding the sufficiency of evidence or undertake a meticulous examination of evidence to determine conviction. The court must limit itself to examining whether the allegations, taken as a whole and without detailed scrutiny, prima facie establish the ingredients of an offence. Quashing of charges is permissible only in the rarest of rare cases where allegations are patently absurd and inherently improbable, or where basic ingredients of a criminal offence are not satisfied. Once allegations are made in the chargesheet which, on their face, establish a prima facie case of the offence charged, the High Court should be disinclined to interfere. The exercise of revisional jurisdiction cannot be used to decide questions of fact or credibility or to marshal evidence to determine guilt or innocence.
On this section: Provides revisional jurisdiction to High Court to call for and examine records of inferior courts for legality and regularity of proceedings. Court extensively analyzed the scope and proper application of this section in the context of quashing charges.
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Jagdish Upasane & Ors. Etc vs State of Rajasthan
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The availability of a remedy under Section 397 Cr.P.C. (criminal revision) does not, by itself, constitute a bar to the exercise of inherent jurisdiction under Section 482 Cr.P.C. by the High Court. While the inherent power should be exercised sparingly and with self-restraint, there is no total prohibition on its exercise. The inherent power can and should be exercised where there is abuse of process of the court or other extraordinary circumstances demanding interference to secure the ends of justice, even if alternative remedies are available. The non-obstante clause in Section 482 preserves the inherent powers despite any other provision in the Code.
On this section: Criminal revision power of the High Court. Court held that while Section 397(2) bars revision of interlocutory orders, this does not wholly prevent the exercise of inherent powers under Section 482.
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State Tr. Insp. of Police vs A. Arun Kumar
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
At the initial stage of criminal proceedings when considering whether to frame charges under Sections 227-228 (or 238-239) CrPC, if material on record discloses grave suspicion against the accused that has not been properly explained, the court is fully justified in framing charges and proceeding with trial, even if the strength of suspicion would not suffice for conviction. The test for prima facie case depends on broad probabilities and total effect of documents and evidence on record, not on conviction-level proof. Documentary evidence showing material discrepancies (such as added digits inflating quantities and values in export documents) that raise grave suspicion against accused is sufficient to frame charges, notwithstanding absence of eyewitness testimony, so long as the ingredients of alleged offences are discernible on the face of the material.
On this section: Revision - under which respondents approached High Court after Special Court dismissed discharge application
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Surya Baksh Singh vs State Of Uttar Pradesh
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The High Court possesses inherent powers under Section 482 of the CrPC to dismiss criminal appeals filed by convicts who deliberately obtain bail or exemption from surrender and thereafter wilfully abscond or fail to prosecute their appeals, provided the Court has first taken reasonable steps to secure the appellant's presence (including proceedings against sureties). However, such dismissal should be preceded by examination of the case on merits where practicable, and the Court must ensure that the appellant has had a fair opportunity to be heard. The ends of justice, which include protection of society and victims' rights alongside convict rights, justify application of Section 482 to prevent abuse of the appellate process by convicts seeking to circumvent their sentences.
On this section: Deals with revisional powers; Section 397(3) bars second revision but inherent powers under Section 482 remain available
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Mohit @ Sonu vs State of U. P.
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
An order of a trial court refusing to summon additional accused under Section 319 Cr.P.C. is not a purely interlocutory order within the meaning of Section 397(2) Cr.P.C. because it substantially affects the rights of the accused by determining whether they will face trial. Therefore, such order must be challenged through revisional jurisdiction under Sections 397/401 Cr.P.C., not through inherent jurisdiction under Section 482 Cr.P.C. Additionally, when any court (whether exercising revisional or inherent jurisdiction) passes an order prejudicial to the rights of an accused or any person, such person has a fundamental right to notice and opportunity of hearing as mandated by Section 401(2) Cr.P.C. and the principles of natural justice before such prejudicial order is passed. The inherent power under Section 482 Cr.P.C. can be exercised only when no other specific remedy is available in the Code.
On this section: Revisional powers of High Court and Sessions Judge; the bar on exercising revisional power in relation to interlocutory orders under subsection (2)
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Chitresh Kumar Chopra vs State
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
At the stage of framing of charges under criminal law, when a court evaluates material on record, if the facts taken at their face value disclose the existence of all ingredients constituting the alleged offense, and if there is ground for presuming that the accused has committed the offense, the charge should be framed even if the probative value of the evidence cannot be fully assessed at this stage. For the offense of abetment of suicide under Section 306 read with Section 107 IPC, instigation can be inferred where the accused by his acts, omissions, or continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, provided the accused had the intention to provoke, urge or encourage the deceased to commit suicide. The mere fact that words were uttered in a quarrel or on the spur of the moment without mens rea does not constitute instigation, but a sustained course of conduct involving harassment, threats, and mental torture that leaves the deceased with no alternative can constitute instigation even in the absence of explicit words to that effect.
On this section: Powers of High Court in revisional jurisdiction; applies to revision petitions challenging charge-framing orders
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Shakuntala Devi vs Chamru Mahto
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Where a magistrate declares a party to be entitled to possession under Section 145(4) of the Criminal Procedure Code, and no specific limitation period is prescribed within Section 145 for the enforcement of such declaration, the application for restoration of possession under Section 145(6) must be made within three years from the date of the declaration, as prescribed by Article 137 of the Limitation Act as a residuary provision. An application for restoration filed beyond this three-year period is barred by limitation and cannot be entertained, and the provisions of the Specific Relief Act do not apply to criminal proceedings under Section 145 CrPC.
On this section: Bars a second revision to the High Court after the Sessions Court dismisses the first revision; Court held this bar can be overcome in special cases through Section 482 powers but such power must be exercised sparingly
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Raghu Raj Singh Rousha vs Shivam Sundaram Promoters(p)l
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Where an order passed by a lower court in criminal proceedings is sought to be revised before the High Court under Sections 397 and 401 of the Criminal Procedure Code, and the proposed order would prejudice the accused or any person, that person has a fundamental right to be heard before such order is passed, regardless of whether the proceedings are at the pre-cognizance or post-cognizance stage. The phrase 'accused or other person' in Section 401(2) CrPC encompasses anyone adversely affected by the High Court's decision, and the principle of natural justice (audi alteram partem) is applicable to all proceedings before the High Court, including criminal revision petitions at pre-summoning stages.
On this section: High Court's power of revision; Court held that Sub-section (2) prohibits exercise of power in relation to interlocutory orders but the order here was not merely interlocutory as cognizance had been taken
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State of Rajasthan vs Fatehkaran Mehdu
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
At the stage of framing charges under Section 228 CrPC, the court is concerned with the allegations taken as a whole whether they constitute an offense, applying the test of whether strong suspicion exists that the accused committed the offense which if put to trial could prove guilt. The revisional jurisdiction under Section 397 CrPC should be exercised with great caution and reluctance at the charge-framing stage, and should only be invoked where the decisions are grossly erroneous, based on no evidence, or material evidence is ignored. Where allegations prima facie establish the ingredients of an offense under Prevention of Corruption Act, 1988 including obtaining valuable things or pecuniary advantages for another person through abuse of public office, and where a conspiracy to commit such acts is alleged with specific factual details, the High Court should not interfere with the charge-framing order by undertaking meticulous examination of evidence inappropriate for that stage. Quashing of charges is an exception to the rule of continuous prosecution and should be permitted only in the rarest cases.
On this section: Vests revisional jurisdiction in higher courts to examine records of inferior courts. Court extensively analyzed proper scope of this jurisdiction, holding it should be exercised only where decisions are grossly erroneous, based on no evidence, or material evidence ignored, with strong caution against interference at charge-framing stage.
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Securities and Exchange Board of India vs S. K. Shelgikar
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Where a special statute expressly or by necessary implication divests lower courts of jurisdiction and vests it in higher courts through amendment, such amendment operates retrospectively to all pending matters, including those where offences were committed before the amendment and proceedings initiated before the amendment, unless the amendment itself expressly provides otherwise. The change of forum in such cases is not merely procedural but is mandated by express statutory language, and no person has a vested right to be tried by a particular forum once proceedings have been initiated. The legislative intent for retrospective application can be inferred from express language divesting jurisdiction from lower courts and vesting it exclusively in higher courts, as evidenced by phrases such as 'No court inferior to that of a Court of Session shall try any offence' and 'all offences committed prior to or after the date of commencement shall be tried by Special Court.'
On this section: Examined whether deprivation of revisional jurisdiction from Magistrate courts constitutes substantive deprivation; held revision is discretionary facility, not a vested right
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Babanna Shankar Duggani vs Jayashree Babanna Duggani
Court's Decision & Legal Precedent
A revision petition under Section 438(2) of BNSS is barred against interlocutory orders, including interim maintenance orders where the party has the right to seek modification in the original court.
On this section: Applied to bar revision petitions against interlocutory orders.
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Shaik Yousuf vs Syed Moosa
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A Criminal Revision petition becomes infructuous and liable to be dismissed when the underlying conviction order has already been finalized by the trial court and no further orders are required to be passed by the High Court.
On this section: Provides the power to the High Court to call for and examine the records of any case decided by a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of the conviction or sentence
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Kalidindi Ramakrishna Raju vs P.p.
Decided under Code of Criminal Procedure 397, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
While the conviction of the petitioners under Sections 278 and 284 IPC is justified based on the evidence and does not warrant interference, the sentence of rigorous imprisonment of six months is excessive and disproportionate. The High Court, in exercise of its revisional jurisdiction, may modify the sentence by setting aside the imprisonment while maintaining the fine penalties, particularly when the accused have already paid the fines and have undergone prolonged litigation.
On this section: Revisional jurisdiction of High Court - Applied to allow the High Court to exercise revisional jurisdiction over the judgment of the appellate court
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… 11200/2025, CRL.M.A. 11201/2025 ASEEM RAJPAL .....Petitioner Through: Counsel for Petitioner (appearance not given). versus DIVYA DUGGAL .....Respondent Through: None CORAM: HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA J U D G M E N T (oral) 1. Criminal Revision Petition under Section 438/442 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed to challenge the Order dated 19.12.2024 vide which the learned Principal District & Sessions Judge, North West District, Rohini Court, Delhi has set aside the Order of learned J.M.F.C., Mahila Court-2, North West District, Rohini Court, Delhi and …
Questions about Section 438
What have the courts held on Section 438 of the Bharatiya Nagarik Suraksha Sanhita?
Sanjay Kumar Rai v. State of Uttar Pradesh (07 May 2021) is the leading judgment on this section among those set out below, though it was decided under CRPC 397, which this section replaced -- the court never mentioned this Act: Successor of CrPC 397 (mapping.csv near-identical, score 0.9924). The revision-against-refusal-of-discharge holding carries to BNSS 438. Another 15 judgments on this section are set out below, 13 of them from the Supreme Court. They run from 2008 to 2026.
How do I find court cases under Section 438 of the Bharatiya Nagarik Suraksha Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNSS 438, section 438 BNSS, section 438 of the Bharatiya Nagarik Suraksha Sanhita. People searching for it also type bnss 438 440 and bnss 438 in crpc. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 16 reported judgments on this section are set out on this page, beginning with Sanjay Kumar Rai v. State of Uttar Pradesh (07 May 2021).
What should I read with Section 438 of the Bharatiya Nagarik Suraksha Sanhita, and has it changed?
Its own text turns on section 439 (Power to order inquiry), so none of them can safely be read on its own. 2 other provisions in this corpus refer back to it. It carries forward CrPC 397 (Calling for records to exercise powers of revision), so the judgments decided under that provision are the case law on this one.
When did Section 438 of the Bharatiya Nagarik Suraksha Sanhita come into force?
Section 438 of the Bharatiya Nagarik Suraksha Sanhita, cited as BNSS 438, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 359. Compounding of offences1355 words
- 187. Procedure when investigation cannot be completed in twenty-four hours1122 words
- 2. Definitions956 words
- 243. Trial for more than one offence930 words
- 35. When police may arrest without warrant881 words
- 480. When bail may be taken in case of non-bailable offence823 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.