Reference to High Court
Section 395 of the Code of Criminal Procedure, 1973 deals with reference to High Court. 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 Ac The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
(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 therefor, and refer the same for the decision of the 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.
Section 395, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 436 Reference to High Court 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 The repealed enactment still governs what happened while it was in force.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.
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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J Ramachandrappa vs The Commercial Tax Officer (intelligence) Bellary
Court's Decision & Legal Precedent
A Magistrate cannot make a reference under Section 395 Criminal Procedure Code on the ground that a statute is invalid or inoperative unless the Magistrate himself forms an opinion to that effect. When a higher court (the High Court) has already upheld the validity of a statute and its applicability to a particular offence, no Magistrate in that jurisdiction can form an opinion that the statute is invalid or inoperative, and therefore no reference can be made under Section 395 Cr.P.C. The proper remedy for challenging the constitutional validity of a statute is through Articles 226 or 32 of the Constitution, not through a Section 395 reference.
On this section: Provision allowing a Magistrate to make a reference to the High Court on questions of law; the court clarified that a Magistrate cannot make such reference unless he forms an opinion that the statute concerned is invalid or inoperative
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Sri Gummala Satish vs Gummala Chandra Shekar
Court's Decision & Legal Precedent
When a complaint has already been referred to police for investigation under Section 156(3) Cr.P.C. and the police have filed a charge sheet which has been taken on file, a subsequent application seeking to refer the matter again to police for investigation is defective and cannot be entertained. However, a complainant dissatisfied with the police final report retains the remedy of filing a private complaint before the Magistrate.
On this section: High Court's revisional jurisdiction in criminal matters
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.
Questions about Section 395
What have the courts held on Section 395 of the Code of Criminal Procedure?
J Ramachandrappa vs The Commercial Tax Officer (intelligence) Bellary (13 Sep 2000) is the leading judgment on this section among those set out below: Provision allowing a Magistrate to make a reference to the High Court on questions of law; the court clarified that a Magistrate cannot make such reference unless he forms an opinion that the statute concerned is invalid or inoperative. Another 1 judgment on this section is set out below. They run from 2000 to 2012.
How do I find court cases under Section 395 of the Code of Criminal Procedure?
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: CRPC 395, section 395 CRPC, section 395 of the Code of Criminal Procedure. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 2 reported judgments on this section are set out on this page, beginning with J Ramachandrappa vs The Commercial Tax Officer (intelligence) Bellary (13 Sep 2000).
What should I read with Section 395 of the Code of Criminal Procedure, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BNSS 436 (Reference to High Court), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 395 of the Code of Criminal Procedure come into force?
Section 395 of the Code of Criminal Procedure, cited as CRPC 395, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 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. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.