REFERENCE (SS.395 – 396)

Reference to the High Court – S.395

Meaning

A reference to the High Court may be made on any of the following grounds:

1. Question of constitutional validity of any law; or
2. Other Question of law.

 Court competent to make a Reference

• 395(1) requires every subordinate Court to refer the question of validity of any Act, etc. to the High Court.
• However, S.395(2) gives discretion to the Court of Sessions and or a Metropolitan Magistrate to refer for the decision of High Court, any question of law arising during the hearing of the case.

Conditions to be fulfilled before a Reference can be made

The following conditions have to be taken into consideration by the subordinate Courts before making a reference on a question of law to the High Court:

1. Pending Case – The case shall be pending before the subordinate Court which purposes to make a reference to the High Court.
2. Question of Law – The reference shall contain a question of law or the question of validity of an Act, Statute, Ordinance or a Regulation. Such question shall be a real and substantial question of law.
3. Disposal of Case – The decision on such question of law shall be necessary for the final decision of the case/disposal of the case.
4. Not already declared invalid – Such question of law shall not have already been declared invalid by the High Court.
5. Opinion & Reasons – The Court that makes the reference shall state a case setting out its opinion and reasons for making the said reference.

Important Points

• Reference shall be made only on a question of law;
• Such question must have arisen in the hearing of the case.
• Such question shall be based on points of law which are already settled by the High Court.
• Merely because a Sessions Judge has entertained a revision petition does not vest him with the powers to make a reference on a question arising out of hearing of such revision.

Post Reference Procedure – S.396

• Once a reference has been made under section 395 to the High Court;
• The High Court may pass order as it deems fit;
• A copy of the order shall be sent to the Court which made the reference at the first place;
• The High Court may also direct parties as to payment of the costs of such reference shall be paid.

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Written   by: Arvind Yadav Advocate