please clarify section 395 CrPC in simple english .
Anil Agrawal (Retired) 23 October 2009
To me, it means that a court may refer to High Court for decision if it things that a particular Act, Ordinance or Regulation is inoperative or invalid.
Pending the decision, the court may commit the accused to jail or release him on bail.
Other lawyer friends may elucidate more.
If the lower judciary which is seized of a matter feels that the matter before them involves question of law, or any act, ordinance or regulation is ultravires the consitution or is not valid then it may refer the matter to the High Court or the Supreme Court because an authoritative pronouncement on questions of law can be made by the High Court or the Supreme Court only.
Rashi (vv) 23 October 2009
does the lower court refer such cases on its own or upon a request in form of an application from a party and at what stage of case it is done ?
Sanjeev Kuchhal (Publishers) 24 October 2009
In one of the case the accused sought reference of matter to High Court under S.395 Cri.P.C.in the matter of Shirish Suresh Welling Vs. Sangeeta Avinash Marathe & Others (2001 (1) LJSOFT 5), the Bombay High Court ruled :
"The main purpose of section 395 is to obviate any difficulties which has arisen at the time of trial or hearing of a case before the Magistrate or District court with regard to the constitutional validity of a provision and entire disposal of the case is dependent upon the determination of such constitutional validity then only the Magistrate can refer the matter to the High Court. Moreover in such cases the Magistrate himself must arrive at a subjective satisfaction that a particular case involves the testing of the vires of any Act or regulation, then only he can refer the matter. When he is satisfied that it is invalid, he must refer the matter to the High Court. This power of the Magistrate cannot be invoked by an application by the accused. The section itself indicates that a case pending before him involves the question and the determination of the question is necessary for disposal of the case, if it is of the opinion that such Act is invalid or inoperative. First of all the Magistrate must satisfy himself that such a question has arisen in the case. Therefore it is a matter not by merely raising that question by party to the proceeding. If the learned counsel's argument is accepted we are driven to a rediculous position that any accused can make an application before that Magistrate alleging that particular Act under which he is prosecuted is invalid and scuttle the trial. That is not the intent and purport of the section. The intention of the legislature is to obviate the difficulty of the Magistrate or District court in deciding the case before them. If the Magistrate feels or satisfied himself that the Act is invalid, he can invoke sec. 395 but it cannot be so readily invoked by merely demonstrating that the particular section is invalid."
Anil Agrawal (Retired) 24 October 2009
Law is there but in how many cases magistrates have invoked this power? Any instance?
Sanjeev Kuchhal (Publishers) 25 October 2009
After the expiry of Essential Commodities (Special Provisions) Act, 1981 by efflux of time, a reference was made by the Addl. Chief Metropolitan Magistrate, regarding the jurisdiction.
The question referred for consideration is "Whether a Criminal case registered under the provisions of the "The Essential Commodities (Special Provisions) Act, 1981 and the subsequent Ordinances on their coming to an end by efflux of time, which is the competent court to try and decide the matters" P.P. Suroshe, Addl. Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai Vs. State of Maharashtra CRIMINAL REFERENCE NO.1 OF 2008 (12-12-2008) (F.I. REBELLO, R.S. MOHITE, JJ.) 2009 (5) LJSOFT 89
Avinash Dube (Advocate) 25 October 2009
every court subordinate to the high court is required to make a reference to the high court if these conditions are there:
1. if the court is stisfied that a case pending before it involves a question as to the validity of any Act /Ordinance/Regulation or any provision of concern such law and the determination of such question is neccessary for the disposal of the case.
2. if it is in the opinion of the court that the law/legal 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.
Remember one imp. thing mere plea raised by the party challenging the validity of law is not sufficient , it is the satisfaction of the court required that any real and substantial question of law is involved.
and the question who can make it......section starts ...."where any court is satisfied ......."
PALNITKAR V.V. (Lawyer) 29 October 2009
Mr. Sanjeev Kuchhal has given one instance. You can find many such examples.
Abhishek (Partner) 23 May 2013
Can HC remand a reference (as under s. 395, Crpc) back to the Sessions Court?