Reference (Sec. 395 – 396)
Reference to the High Court – S.395
A reference to the High Court may be made on any of the following grounds:
- Question of constitutional validity of any law; or
- Other Question of law.
Court competent to make a Reference
- S.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:
- Pending Case – The case shall be pending before the subordinate Court which purposes to make a reference to the High Court.
- 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.
- Disposal of Case – The decision on such question of law shall be necessary for the final decision of the case/disposal of the case.
- Not already declared invalid – Such question of law shall not have already been declared invalid by the High Court.
- 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 on Reference
- 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.