JAMIA MILLIA ISLAMIA

REVISION AND
REFERNACE
GUIDED BY DR. ASAD MALIK

SAHIL CHOWDHURY
5TH YEAR
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ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the Almighty
ALLAH for providing me with the authentic circumstances which were mandatory for the
completion of my research work.
I am also thankful to Dr. ASAD MALIK, for his invaluable support, encouragement,
supervision and useful suggestions throughout this research work. His moral support and
continuous guidance enabled me to complete my work successfully. His intellectual thrust
and blessings motivated me to work rigorously on this study. In fact this study could not have
seen the light of the day if his contribution had not been available. It would be no
exaggeration to say that it is his unflinching faith and unquestioning support that has provided
the sustenance necessary to see it through to its present shape.

Sahil Chowdhury
B.A.LL.B (Hons) 9th Semester
5th Year
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TABLE OF CONTENTS
INTRODUCTION TO CRIMINAL PROCEDURE CODE, 1973............................................ 3
IMPORTANT CHANGES..................................................................................................... 4
INTRODUCTION TO REVISION ........................................................................................... 6
THE POWER TO CALL FOR AND EXAMINE THE RECORD OF THE LOWER COURT
.................................................................................................................................................. 10
THE JURISDICTION OF THE HIGH COURT AS A REVISIONAL POWER ................... 10
THE DIFFERENCE BETWEEN THE APPELLANT AND REVISIONAL JURISDICTION
OF THE HIGH COURT .......................................................................................................... 11
SECTION 401 AND ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA ....... 12
WHO MAY APPLY FOR REVISION.................................................................................... 12
WHETHER THE HIGH COURT CAN EXERCISE ITS POWER OF REVISION WHERE
AN APPEAL IS PENDING AGAINST THE IMPUGNED ORDER BEFORE THE
SESSIONS COURT................................................................................................................. 13
POWERS OF A COURT IN REVISION ................................................................................ 13
WHO CAN INVOKE REVISIONAL JURISDICTION ......................................................... 14
HOW THE POWERS ARE EXERCISED .............................................................................. 17
CASE LAWS ........................................................................................................................... 18
INTRODUCTION TO THE REFERENCE ............................................................................ 21
BIBLIOGRAPHY .................................................................................................................... 26

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INTRODUCTION TO CRIMINAL PROCEDURE CODE, 19731

Prior to the conquest of India by Muslims, the Hindu Criminal Law was prevailing in India,
which was well established and well defined. Circumstantial evidence was sufficient to
punish or acquit a criminal. Accused was entitled to produce any witness in his defence. Trial
by ordeal was frequently used to determine the guilt of the person. Also trial by jury existed.
The Punishment was considered to be a sort of expiation which removed impurities from the
man.
After the conquest of India by the Muslims, the Mohammedan Criminal Law came into
existence. The courts while deciding the criminal cases were guided by this law. In 1773, the
Regulating Act was enacted under which a Supreme Court was established in Calcutta and
later on at Madras in Bombay. This introduced English law in India. The Supreme Court was
to apply British Procedural Law while deciding the cases of the Crowns subjects. In 1790,
Lord Cornwallis found the Mohammedan Criminal Law defective in many respects and
introduced reforms. After the Rebellion of 1857, the crown took over the administration in
India. The Criminal Procedure Code, 1861 was passed by the British parliament.
After the Mutiny in 1857, the British Government dissolved the East India Company and
direct responsibility of administration in India was taken by the Crown. Faced many
difficulties in controlling Judicial Administration in the absence of suitable substantive as
well as procedural legislation. With a view to provide criminal procedural law to the British
administrators in India, the British Parliament passed a Code of Criminal Procedure in 1861
which was amended in 1869 and finally replaced by Code of Criminal Procedure 1872.
In 1898, the Code of Criminal Procedure was supplemented by a new Code vide Act V of
1898, which formed the basis of the present Code of Criminal Procedure. After
Independence, this Code was amended from time to time by various Central and State Acts.
In 1955, the amendments in this Code were made with intent to simplify procedures and
speed up trials. Finally, in 1973, major amendments were made in the Code of Criminal
Procedure, 1898 and the old Code was replaced by the Code of Criminal Procedure, 1973.
Criminal Procedure Code, 1973 is the main legislation on procedure for administration of
substantive criminal law in India. It was enacted in 1973 and came into force on 1 April,
1

ACT NO. 2 OF 1974 [25th January, 1974.]

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1974. It provides the machinery for the investigation of crime, apprehension of suspected
criminals, collection of evidence, determination of guilt or innocence of the accused person
and the determination of punishment of the guilty. Additionally, it also deals with public
nuisance, prevention of offenses and maintenance of wife, child and parents.

IMPORTANT CHANGES
The preliminary enquiry which precedes the trial by Court of Sessions was abolished.
Provisions made to enable adoption of summons procedure for the trial of offences
punishable with imprisonment up to 2 years instead of up to 1 year. The scope of summary
trial has been widened by including offenses punishable with imprisonment up to 1 year
instead of 6 months. The powers of revision against interlocutory orders have been taken
away.
The provision for mandatory stoppage of proceedings by a subordinate court, on the mere
intimation from a party of his intention to move a higher court for transfer of case has been
omitted and a further provision has been made to the effect that the court hearing the transfer
application shall not stay the proceedings unless it is necessary to do so in the interest of
justice. When adjournments are granted at the instance of either party, the court has been
empowered to order costs to be paid by the party seeking adjournment to the other party.
Provisions have been made for the service of summons by registered post in certain cases. In
petty cases, the accused has an opportunity to plead guilty by post, and to remit the fine
specified in the summons.
If court of appeal or revision discovers that any error, omission or irregularity in respect of
charge has occasioned failure of justice, it need not necessarily order a retrial. The facility of
part heard cases being continued by successor in office available in respect of Courts of
Magistrates has been extended to Courts of Session.
Judiciary has been completely separated from the executive. Provisions have been made for
legal aid to indigent accused in cases triable by Court of Session. The State government may
extend this facility to other categories of cases. The court has been empowered to order
payment of compensation by the accused to the victims of crime to a larger extent than was
provided in the old Code.
When a commission is issued for the examination of witnesses for the prosecution, the cost
incurred by the defence including pleaders fee, may be ordered to be paid by the prosecution.
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An opportunity is given to the accused to make representation against the punishment before
it is imposed. And also in 2013 amendment act, important changes were brought in for the
well-being of the society.
This is the well-known and accepted fact that the Liberty is the most precious of all the
human rights. It has been the founding faith of the human race for more than 200 years. Both
the American Declaration of Independence, 1776 and the French Declaration of the Rights of
Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of
man. The Universal Declaration of Human Rights adopted by the General Assembly of the
United Nations on December 10, 1948, contains several articles designed to protect and
promote the liberty of individual. So does the International Covenant on Civil and Political
Rights, 1966. Above all, Article 21 of the Constitution of India proclaims that no one shall be
deprived of his liberty except in accordance with the procedure prescribed by law. Even
Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
As it is often said, one realizes the value of liberty only when he is deprived of it. Verily,
liberty along with equality is the most fundamental of human rights and the fundamental
freedoms guaranteed by our Constitution.
Of equal importance is the maintenance of peace and law and order in the society. Unless
there is peace, no real progress is possible. Societal peace lends stability and security to the
polity. It provides the necessary conditions for growth, whether it is in the economic sphere
or in scientific and technological spheres. Just as liberty is precious to an individual, so is the
society interested in peace and maintenance of law and order in the society. Both are equally
important. This fact was recognized about 2500 years ago by Heraclitus of Ephesus. He had
observed:A major problem of human society is to combine that degree of liberty without which law is
tyranny with that degree of law without which liberty becomes license.2

Arthur T. Vanderbilt in his article United We Stand;

th
http://lawcommissionofindia.nic.in/reports/177rptp1.pdf, Law commission report of India 177 report

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INTRODUCTION TO REVISION
As the code says that there is no right to appeal in every case and it is confined to such cases
as are specifically provided by the law. Even in such specified cases the code allows only one
appeal and a review of the decision of the appellant court is not normally permissible by way
of further appeal to yet another higher court. In order to avoid the possibility of any
miscarriage of justice in cases where no right of appeal is available the code has devised
another review procedure, namely REVISION. Section 397 to 405 of Criminal Procedure
Code deals with the powers of revision conferred on the higher courts and the procedure to
regulate these powers. The powers of revision conferred upon the higher courts are very wide
and are purely discretionary in nature. Therefore no party has right t heard before any court
exercising such powers.
The provisions for reviewing the decision of a criminal court are essential for the due
protection of life and liberty and are rooted in the conception that men including the Judges
and Magistrates are fallible. Appeal as a review procedure was discussed earlier in Lecture
16. In cases where no appeal has been provided by law or in cases where the remedy of
appeal has for any reason failed to secure fair justice, the Code provides for another kind of
review procedure, namely, revision. Very wide discretionary powers have been conferred
on the Court of Session and the High Court for the purpose of revision. While making
provisions for extensive powers of revision for ensuring correctness, legality, and propriety of
the decisions of criminal courts, the Code has also taken care to see that this review
procedure does not make the judicial process unduly cumbersome, expensive or dilatory.
The basic object behind the code in section 401 is to empower the high court to exercise the
powers of an appellant court to prevent failure of justice in cases where the code does not
provide for appeal. The power however is to be exercised only in exceptional cases where
there has been a miscarriage of justice owing to: - a defect in the procedure or a manifest
error on the point of law, excess of jurisdiction, abuse of power, where decision upon which
the trial court relied has since been reversed or overruled when the revision appeal is being
heard. In exercising the power of revision, which is discretionary, the court should always
bear in mind the limitation that grab of exercising its power of revision; it cannot ion effect
exercise the power of appeal in the face of statutory prohibitions.

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In cases where no appeal has been provided by law or in cases where the remedy of
appeal has for any reason failed to secure fair justice the criminal procedure code provides for
another kind of review procedure, viz. revision. Revision lays both in pending and decided
cases and it can be filed before a High Court or a Court of Session. Very wide discretionary
powers have been conferred on the Sessions Court and the High Court.
The object of the revision is to confer upon superior criminal courts a kind of paternal
or supervisory jurisdiction in order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of proper precautions of apparent
harshness of treatment which has resulted on the one hand in some injury to the due
maintenance of law and order, or on the other hand in some undeserved hardship to
individuals.
The purpose of revision is to enable the revision court to satisfy itself 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 the inferior criminal court.
The Revisional jurisdiction is derived from three sources:a) Section 397 to 401 of the Cr PC;
b) Article 227 of the Constitution of India;
c) The power to issue the writ of certiorari.
Under Section 397(1) of the Cr PC, 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 order be suspended, and if the accused is in
confinement, that he be released on bail or on his own bond pending the examination of the
record.
Under Section 398 Cr PC, the revision Court may make an order for further inquiry. Further
inquiry entails supplemental inquiry upon fresh evidence. The power under Section 398, Cr
PC is not co-extensive with Section 397, Cr PC but extends far wider as the record can
otherwise be examined by the revision Court without recourse to Section 397, Cr PC.

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Section 399, Cr PC deals with Sessions Judges power of revision. Under sub section (1), the
Sessions Judge, in the case of any proceeding the record of which has been called for by
himself under Section 397(1), may exercise all or any of the powers which are exercisable by
the High Court under Section 401(1) of the Code of Criminal Procedure.
Section 401(1) of the Cr PC reads as follows: - In the case of any proceeding the record of
which has been called for by itself or which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by
Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges
composing the Court of revision are equally divided in opinion, the case shall be disposed of
in the manner provided by Section 392.
The Allahabad High Court in Om Pratap Singh vs. State3 has observed that the revisional
power of this Court under Sections 397 and 401, Cr PC is a kind of supervisory jurisdiction in
order to prevent miscarriage of justice arising from the mis-conception of law or irregularity
of procedure committed by the subordinate Courts. These two Sections do not confer
unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power
of this Court is to see that justice is done in accordance with the recognized rules of criminal
jurisprudence and the subordinate Courts do not exceed their jurisdiction or abuse their
powers vested in them under the Code of Criminal Procedure.
The High Court in a revision is empowered to interfere with an order of acquittal and direct
fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert
finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of
acquittal into conviction. High Court, however, would not disturb a finding of fact unless it
appears that trail court shut out any evidence, or overlooked any material evidence or
admitted inadmissible evidence or where there has been manifest error on a point of fact.
Circumstances in which retrial may be ordered, without being exhaustive are
a) where trail court has no jurisdiction to try a case;
b) where trail court has wrongly shut out evidence which prosecution sought to produce;
c) where material evidence has been overlooked;
d) where acquittal is based on a compounding of the offence which is invalid under law;

1995 Cr LJ 3887

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e) Where the appellate court has wrongly held evidence admitted by trail court as
inadmissible.
In State of Maharashtra vs. Jagmohan Singh Kuldip Singh and Others 4, the Supreme Court
has held: - in exercise of revisional power High Court cannot undertake in-depth and minute
re-examination of entire evidence and upset concurrent findings of trail court and appellate
court.'
In the case of Ayodhya Dube vs. Ram Sumer Singh5, where accused was acquitted without
considering material evidence with inconsistent and faulty reasoning and probative value of
FIR was also ignored, High Court was justified in directing retrial.
The revisional powers though are quite wide, have been circumscribed by certain limitations.
Such as
a) in such cases where an appeal lies but there is no appeal brought in, originally no
proceeding by way of revision shall be entertained at the instance of the party who
would have appealed.
b) The revisional powers are not exercisable in relation to any interlocutory order passed
in any appeal, inquiry and trial.
c) The court exercising revisional powers is not authorized to convert a finding of
acquittal into one of conviction into one of convection.
d) A person is allowed to file only one application for revision either to the Court of
Session or to the High Court if once such an application is made to one court, no
further application by the same person shall be entertained by the other court.
All this provisions and the limitations are being given by the section 401 of the Criminal
procedure code of 1973. Further the researcher would like to go with its provisions separately
and what all lies with the high court in such matters with the help of the case laws.

4
5

2004 (7) SCC 659

AIR 1981 SC 1415

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THE POWER TO CALL FOR AND EXAMINE THE RECORD OF THE LOWER
COURT

According to Section 397(1), the High Court or a Sessions Court may call for and examine
the record of any proceeding before any inferior criminal court situate within its local
jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of
any finding or order of such inferior court.
On examination of such record if the High Court or the Sessions Court considers any
corrective action necessary, it has ample powers to do so under Sections 398-401.
The proceeding referred to in Section 337(1) above includes any judicial proceeding taken
before any inferior criminal court even though it may not relate to any specific offence. The
expression inferior criminal court only means judicially inferior to the High Court (or
Sessions Court). All Magistrates, whether executive or judicial, and whether exercising
original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge
[Explanation to Section 397(1)].6 The Sessions Judge is also inferior to the High Court within
the meaning of Section 397(1), and the High Court may call for and examine the record of
any proceedings before a Sessions Judge?7
The High Court or the Sessions Court may, when calling for such record under Section
397(1), direct that the execution of any sentence or order be suspended, and if the accused is
in confinement, that he be released on bail on his own bond pending the examination of the
record [S.397(1)]

THE JURISDICTION OF THE HIGH COURT AS A REVISIONAL POWER

The High Courts power to jurisdiction to act as a revisional court has to be deduced from all
the provisions in section 397-401 read together. The points on which they are read together
are as follows:

Collector passing an order of confiscation or otherwise under the Essential Commodities Act or the
Government constituting as an appellate authority under that Act cannot be considered as inferior criminal
court: G.C.Venkateswarlu v. State ofA.P., 1986 Cri LJ 1713 (AP HC).
7
Machandra v. Jambeswar, 1975 Cri LJ 1921, 1922 (Ori HC); Thakur Das v. State of M.P., (1978) 1 SCC 27: 1978
SCC (Cri) 21, 28: 1978 Cri LJ 1.

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The High Court may itself call for the record of an inferior court under section 397
either on the application of a party aggrieved suo moto which is section 401(1).

When the high court has before it on appeal the record of a criminal proceeding, it
may exercise its power of revision under section 401 in respect of a matter in regard
to which it could have otherwise exercised its power of revision even where the
appeal is incomplete. It should be noted that where in a proceeding on appeal the
court proposes to exercise its revisional powers; its intention to that effect should be
made clear in its orders. If however high court proceeds in exercise of its power as an
appellant court, assuming that the appeal is complete and subsequently it is
discovered that appeal was incompetent and that accordingly the order passed by the
high court was void, the order cannot be saved by treating it as having been passed by
the High Court as a court of revision.

The High Court may also exercise its revisional powers where the defect in the record
of a case before an inferior court comes to its knowledge in any other manner.

THE DIFFERENCE BETWEEN THE APPELLANT AND REVISIONAL

JURISDICTION OF THE HIGH COURT
Though sub section (1) of the section 401 of the criminal procedure code extends all the
appellate powers of the High Court to its revisional jurisdiction, it is subject to exceptions
specified in the other sub-section as a result of which the following points of distinction
should be noted.
i.

In appeal, the High Court can convert an acquittal into a convention and vice versa,
but in revision it cannot convert a finding of acquittal into one of conviction that is in
Section 401(3).

ii.

The power of High Court in appeal is not so wide as that in revision. In exercising its
revisional jurisdiction the High Court may even cure any irregularity or impropriety
Section 397 of Criminal Procedure Code that is not so in appeal. But normally, the
High Court would not interfere, in reyision unless there is a glaring defect in the
procedure or a manifest error in law, which has resulted in flagrant miscarriage of
justice.

iii.

In disposing of a criminal appeal against conviction, the court will interfere, unless it
is satisfied as to the guilt of the accused, while in revision the High Court will not
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interfere unless the conscience of the court is aroused to such an extent as to compel it
to expressly say that the applicant ought not to have been convicted on the evidenced.
iv.

The High Court cannot dismiss an appeal without affording the appellant or his
pleader a reasonable opportunity of being heard. But in revision the High Court is not
bound to hear the applicant or his pleader save while enhancing any sentence, in
which case the accused shall be heard as of right, this is in section 401(2) or criminal
procedure code.

v.

There is no provision for abatement of revision proceeding as for appeal.

SECTION 401 AND ARTICLE 226 AND 227 OF THE CONSTITUTION OF

INDIA
In an appropriate case, it may be permissible for High Court to protect a person from illegal
prosecution, by granting an appropriate write such as writ of mandamus.
Section 401 of Cr.P.C and Article 227 grants the extraordinary constitutional power to the
High Court under Article 227 which cannot be taken away by anything in section 397, 401 of
the Cr.P.C. Of course the High Court can interfere under Article 227 only if the conditions
necessary for application of that provision exist such as where the order in question is without
jurisdiction or founded on no evidence. But Art. 227 cannot be used to interfere with a matter
in the discretion of the inferior Court.

WHO MAY APPLY FOR REVISION

There is a consensus of opinion that unless the High Court acts Suo Moto, it can be moved to
exercise its power of revision only when an aggrieved party makes an application under
section 397(1) to call for the records, such aggrieved party may be the accused himself or the
complainant or some other person. When a case has been instituted on police report, a private
party cannot, therefore, make such application and move the High Court to call for the
records and to exercise its power under section 401, in revision unless there are exceptional
circumstances. But when the records come up before the High Court on appeal against
conviction by the accused, the High court entertained a revision petition for enhancement of
the sentence filed by a brother of the deceased and enhanced the sentence, after issuing notice
upon the accused. The Supreme Court upheld this order as a suo motu exercise of its
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revisional power, for the purpose of which anybody could draw the attention of the High
Court to the illegality or irregularity in the order or sentence. In short, the application of a
person who has no locus standi may be treated as information to induce the High Court to
precede suo motu in a present case. Section 401(4) says that when a party is entitled to appeal
against an order, it is not entitled to apply in revision without first appealing against such
order. Hence, where a state government has failed to appeal against an order or acquittal, it
cannot move in revision against that order. Under sub section (4) of section 378, a
complainant is entitled to appeal if
a. the case has not been instituted on his complaint and
b. if the High Court grants him special leave to file such appeal. Hence, in such a case,
the complainant cannot apply for revision without first seeking the special leave to
appeal from the High Court. The complainant, in cases other than the above, or even a
third party, may apply for revision, provided only there are exceptional grounds such
as: Absence of jurisdiction, Miscarriage of Justice.

WHETHER THE HIGH COURT CAN EXERCISE ITS POWER OF REVISION

WHERE AN APPEAL IS PENDING AGAINST THE IMPUGNED ORDER
BEFORE THE SESSIONS COURT
The usual rule of practice is that the High Court would not excise its revisional power under
section 401, in a case where the aggrieved party has appealed against the judgment or order
before an inferior court, until that appeal is disposed of. But there may be exceptional cases
where the ends of justice required that appeal itself be heard by the High Court and n such a
case, it is open to the High Court to call for the records of the appeal under its revisional
power, hear and dismiss the appeal and thereafter enhance the sentence under its revisional
power.

POWERS OF A COURT IN REVISION

The revisional powers of a High Court are very wide. Section 397 which is linked with Sec.
401 indicates the circumstance in which such powers can be exercised. Such powers are
intended to be used by the High Court to decide all questions as to the correctness, legality or
propriety of any finding, sentence or order, recorded or passed by an inferior criminal court
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and even as to the regularity of any proceeding of any inferior court. The object of conferring
such powers on the High Court is to clothe the highest court in a state with a jurisdiction of
general supervision and superintendence in order to correct grave failure or miscarriage of
justice arising from erroneous or defective orders. Section 401(1) confers on the High Court
all the powers of the appellate court as mentioned in Sections 386, 389 390 and 391. It also
empowers the High Court to direct tender of pardon to the accused person as contemplated by
S.307. Apart from these powers the court has given additional powers in respect of specific
cases falling under S. 106(4), 356(4), 357(4).etc. Any order passed in any proceedings
under the Code, except when it is specifically barred such as an interlocutory order, is
revisable by the High Court under S.401.
The revisional powers under 397 and 401 are entirely discretionary. There is no vested right
of revision in the same sense in which there is vested right of appeal. These sections do not
create any right in the litigant, but only conserve the powers of the High Court to see that
justice is done in accordance with the recognized rules of criminal jurisprudence and that
subordinate criminal courts do not exceed their jurisdiction, or abuse the powers vested in
them by the Code.

WHO CAN INVOKE REVISIONAL JURISDICTION

Section 397(1) of the Cr PC does not say on whose motion Court may call for the records
of the lower Court, but subsection (3) indicates that an aggrieved party may make an
application. So far as High Court is concerned, Section 401(1) expressly authorizes the court
to exercise power of revision suo motu apart from the application from a party. The
complainant is entitled to move a revision even if state does not. When there was acquittal of
the accused that was charged on a police report and the state did not file an appeal against it,
the informant, since he had no right of appeal against the order, was held to be competent to
apply for a revision.
While Courts might have expressed different view on the scope of the bar under Sub-section
(4) of Section 401, there can be no dispute that suo motu power of the court is not at all
affected by the bar in sub-section (4) of Section 401.
Whether where a power is exercised under Section 397 of Cr PC, the High Court could
exercise those very powers under Section 482, Cr PC.
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Inherent power of the Court can be exercised when there is no remedy provided in the Code
of Criminal Procedure for redressal of the grievance. It is true that Section 397(2) clearly bars
the jurisdiction of the Court in respect of interlocutory orders passed in appeal, inquiry or
other proceedings. The matter is however, no longer res integra as the entire controversy has
been set at rest by a decision of the Apex Court in the case of Madhu Limaye vs. State of
Maharashtra8, and where Apex Court pointed out that Section 482 of the Cr PC had a
different parameter and was a provision independent of Section 397(2).
In the case of Raj Kapoor vs. State9, Justice Krishna Iyer, while distinguishing the power of
the High Court under Section 397 vis-a-vis Section 482 of Cr PC observed that Section 397
or any of the provisions of Cr PC will not affect the amplitude of the inherent power
preserved in Section 482.
The Apex Court in the case of Mohit vs. State of UP10, observed that any order which
substantially affects the right of the accused, or decides certain rights of the parties cannot be
said to be an interlocutory order so as to bar a revision to the High Court against that order.
Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports
and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory
orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders
which are matters of moment and which affect or adjudicate the rights of the accused or a
particular aspect of the trail cannot be said to be interlocutory order so as to be outside the
purview of the revisional jurisdiction of the High Court.
The High Court can exercise its powers suo moto or on any petition of any aggrieved party or
even on the application of any person. However, there are 2 limitations:

In a case where any application for revision is made by or on behalf of any person
before the Sessions Judge, no further proceeding by way of petition shall be
entertained by the High Court.
Suppose a proceeding under Section 145 Cr PC between X and Y terminated before
the magistrate in favor of X. The criminal revision of Y before the Sessions Judge was
dismissed. A criminal revision before the High Court at the instance of Y shall not be
entertained. In the same illustration if Ys criminal revision before the Sessions Judge

(1978) 1 SCR, 749

(1980) 1 SCC 43
10
(2013) 7 SCC 789
9

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was allowed, a criminal revision to the High Court against the order of the Sessions
Judge at the instance of X is maintainable.

In a case where under this Code an appeal lies but no appeal is brought, then
according to sub-section 4 of S.401, no way of revision shall be entertained at the
instance of the party who could have pleaded. This rule is based on sound policy that
a person who has not exhausted his remedies by law should not normally be allowed
to invoke revisional jurisdiction of the High Court.

A private party has no locus standi in a case instituted on a police report and has right to
demand an adjudication on an application in revision. He cannot claim locus standi even if
the Public Prosecutor permits him to seek revision. But it cannot be said that a private party
has no right to bring to the notice of the Sessions Judge or the High Court any illegality
committed by the subordinate court. There may be exceptional circumstances I which, on a
revision application filed by a private party, revisional jurisdiction may appropriately be
exercised. However, while dealing with such a revision application it would not be irrelevant
to bear in mind the fact that court's jurisdiction has been invoked by a private party and that
the criminal law is not to be used as an instrument wreaking private vengeance by an
aggrieved party against the person who according to that party has caused injury to it.
Keeping this fact in view if the court finds that there is some glaring defect in the procedure
or there is manifest error on a point of law and consequently there has been flagrant
miscarriage of justice, revisional jurisdiction should be exercised. In a case, while the appeal
was pending in the Sessions Court a revision application was filed in the HC by the
complainant ho also prayed for transferring the appeal from the Sessions to the High Court to
be heard along with the revisions. The court rejected the prayer for the transfer and ruled that
the criminal revision case should remain pending until the disposal of the appeal by the
Sessions Court to enable the complainant to pursue the same after the appeals are disposed of
by the Sessions Court.
In the case of Kaptan Singh vs. State of Madhya Pradesh11 The revisional jurisdiction when
involved by a private complainant against an order of acquittal ought not to be exercised
lightly and that it could be exercised only in exceptional case where the interest of public
justice require interference for the correction of a manifest illegality or the prevention of a
gross miscarriage of justice.
11

((1997) 4 supreme 211).

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HOW THE POWERS ARE EXERCISED

The exercise of jurisdiction under S.401 is discretionary and such powers are to be used only
in exceptional cases where there is a glaring defect in the procedure or there is manifest on
point of law and consequently there has been a flagrant miscarriage of justice. The exercise of
revisional power is justified only to set right grave injustice not merely to rectify every error
however inconsequential. Merely because the lower court has taken a wrong view of law or
misapprehended the evidence on the record cannot by itself justify the interference or
revision unless it has also resulted in grave injustice? It is no doubt not possible nor
practicable to lay down any rigid test of uniform application and the matter has to be left to
the sound judicial discretion of the HC in each case to determine if it should exercise it
extraordinary power of revision to set right injustice. Ordinarily the HC court will not
interfere; but in a case where there has been gross injustice, or where evidence has been
overlooked or not considered in its true perspective, the HC must interfere.
While exercising the power of revision, the HC has to work I conformity with two statutory
limitations:

The powers of revision shall not be exercised in any interlocutory order;

The court having exercised such power shall not have the power to convert a finding
of acquittal into one of conviction.

Section 401(1) provides that in the exercise or revisional jurisdiction the HC may exercise
any of the powers of the court of appeal. As the court of appeal is entitled under 386(a) to
reverse an order of acquittal or to direct a retrial, the HC in the exercise of its revisional
powers would also be entitled to record a conviction by reversing the order of the acquittal.
But 401(3) prohibit the High Court from converting a finding of acquittal into one of
conviction. This places limitations on the power of the HC to set aside a finding of acquittal
in the revision, particularly when the state had not thought fit to appeal to the HC against the
finding of the acquittal and where the HC is exercising the revisional jurisdiction at the
instance of private parties. In a number of decisions, the Supreme Court has held that the
revisional power of the HC to set aside the order of the acquittal at the instance of private
parties should be exercised only in exceptional circumstances where there is some glaring
defect in the procedure or there is a manifest error on the point of law.

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It would follow from the above that where an acquittal is based on the compounding an
offence and the compounding is invalid under the law, the acquittal would be liable to be set
aside by the HC in the exercise of such jurisdiction.
In a case, the acquittal recorded by the Sessions Court was reversed and the accused was
convicted by the HC, acting on the letter from a prosecution witness, by treating it is a
criminal revision petition. The SC disapproved of the HC's action in the following words:
No doubt the HC in exercise of its revisional powers can set aside an order of acquittal if it
comes within the ambit of exceptional circumstance enumerated above, but it cannot convert
an order acquittal into an order of conviction. The only course left is to order for a retrial.

CASE LAWS
In this chapter researcher would like to discuss some of the case laws which deals with the
Section 401 of the Criminal Procedure Code.
Connected herewith is the question about the options open to the High Court in case a
judgment of acquittal, when examined within the parameters laid down by D.Stephens vs.
Nosibolla, is found to call for interference. The High Court cannot convert the acquittal into
conviction. The earlier Code of 1898 also gave similar powers to the High Court by Section
439. The earlier Code and the present one by Sections 439(4) and 401(3) respectively have
imposed a restriction by enacting that the revisional jurisdiction cannot be exercised to
convert an acquittal into conviction:
In the case of Bansi Lal and Othres v. Laxman Singh : - The five appellants were tried by
the Court of Additional Sessions Judge, Delhi on a charge of murder under Section 302 read
with Section 34 of the Indian Penal Code. After a very detailed consideration of the evidence
adduced in the case, the learned Additional Sessions Judge acquitted the appellants giving
them the benefit of doubt. The respondent herein, who is a son of the deceased victim of the
murder preferred a criminal revision petition before the High Court of Delhi under Section
397/401, Cr.P.C. challenging the order of acquittal passed by the learned Additional Sessions
Judge. A learned Single Judge of the High Court allowed that revision petition, set aside the
acquittal of the appellants and remitted the case to the trial Court for retrial.

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Aggrieved by the said judgment of the High Court the appellants have come up to this Court
with this appeal and the main contention raised by them is that the learned Single Judge of
the High Court has transgressed the bounds of his revisional jurisdiction in re-appreciating
the evidence and setting aside their acquittal.
In the case of Jaspreet Singh v. A.P Singh:- This revision petition under Sections 397/401,
Cr.P.C. is directed against the judgment of learned Additional Sessions Judge, New Delhi,
dated 18.2.2005, sitting as a Court of appeal, thereby dismissing the appeal filed by the
petitioner herein against his conviction of sentence.
The petitioner herein was prosecuted by the DRI for the offence punishable under Sections
132/135(1) (a) of the Customs Act (for short the Act) and after trial was convicted for the
said offences and sentenced to 6 months rigorous imprisonment and fine of Rs. 1000/- for the
offence punishable under Section 132 of the Act or in default of payment of fine to undergo
one and a half month's simple imprisonment. The petitioner was further sentenced to 3 years
rigorous imprisonment and a fine of Rs.1000/- or in default of payment of fine to further
undergo simple imprisonment of one and a half months. Aggrieved by his conviction and
sentence the appellant preferred an appeal but without success, the learned appellate Court
upholding the conviction as well as the sentence. Even the plea for reduction/modification of
sentence did not find favour with the appellate Court.
Though in the body of the revision petition, the petitioner sought to assail both conviction and
sentence as illegal and unwarranted, but during the course of hearing of the petition, Mr.
Mehta learned Counsel for the petitioner stated at the Bar that he did not wish to press the
grounds on which conviction of the petitioner has been challenged. Accordingly, he confined
his submissions only so far as it relates to the quantum of sentence as awarded to the
petitioner by the learned trial Court and upheld by the appellate Court.
In the case of Lalsai Khunte v. Nirmal Sinha and Ors the Supreme Court of India has
observed that: - The convict had earned a remission and the period of imprisonment reduced
by the period of remission would have had the effect of removing disqualification as the
period of actual imprisonment would have been reduced to a period of less than two years.
The Constitution Bench held that the remission of sentence under Section 401 of the Criminal
Procedure Code (old) and his release from jail before two years of actual imprisonment
would not reduce the sentence to one of a period of less than two years and save him from
incurring the disqualification.
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An order of remission thus does not in any way interfere with the order of the court; it affects
only the execution of the sentence passed by the court and free the convicted person from his
liability to undergo the full term of imprisonment inflicted by the court, though the order of
conviction and sentence passed by the court still stands as it was. The Page 1084 power to
grant remission is executive power and cannot have the effect which the order of an appellate
or revisional court would have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by the appellate or revisional court.
In the case of Dharam Pal v. Ram shree12, the court held that the second application is not
applicable under section 482.
Also in case of
In the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. The
Supreme Court observed that the Revisional Court is empowered to exercise all the powers
conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC.
Section 401 CrPC is provision enabling the High Court to exercise all powers of Appellate
Court, if necessary, in aid of power of superintendence or supervision as a part of power of
revision conferred on the High Court or the Session Court. Section 397 CrPC confers power
on the High Court or Sessions Court, as the case may be, "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 regularity of any proceeding of such inferior court." It is for the
above purpose, if necessary, the High Court or Sessions Court can exercise all appellate
powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is
with the above limited purpose. The provisions contained in Section 395 to Section 401
CrPC, read together, do not indicate that the revisional power of the High Court can be
exercised as a second appellate power.

12

1995

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INTRODUCTION TO THE REFERENCE

SCOPE AND APPLICATION
In Sub section 1 provides for references to the high court by any court when it is satisfied that
a pending case involves a substantial question as to the validity of any act, ordinance or
regulation. The determination of which is necessary for the disposal of the case under article
228 of the Indian constitution if there is any substantial questions as to the interpretation of
the constitution, the high court may transfer the case to itself for the determination of the
question. The scope of article 228 compared with that of section 39513
Condition for a reference
1. The court is to be satisfied that the question of the validity of an act or ordinance or
regulation or provisions contained therein is raised in a case pending before it.
2. The court is to be satisfied that the determination of the point is necessary for the
disposal of the case
3. The court must be of the view that such act/ordinance and is valid or inoperative but
has not been so declared by a superior court.14
Without giving thought to the last aspects and without forming a view as to the invalidity or
inoperative character of the provision. The court cannot proves to state a case and make
reference under 395 of the crpc15.
When considering the question of validity of any provision, the court should not itself make
the decision and to follow it of any other high court to which it was not subordinate by
disregarding the provisions of section 39516.
Subsection 2 confers only on Court of Session or metropolitan magistrate an additional power
to refer to the high court for its opinion a difficult or important question of law or on which
there is reasonable doubt arising in the hearing of the case.

13

State of bihar v. a. f. a. Hamid; AIR 1954

State v. Keshav Chandra Naskar, AIR 1962;
15
N. Surya Narayana v. Forest Range Officer, AIR 1968.
16
IBID
14

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In case of State of Assam v. Amirruddin17, the magistrate cannot refer to the high court the
question whether acquittal obtained by fraud shouldnt be set aside. No question of validity of
act is involved.
SECTION 395 OF THE CRIMINAL PROCEDURE CODE: 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 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 therefore,
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.
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.
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.
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 & Others18,
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

17
18

1986
(2001 (1) LJSOFT 5)

22 | P a g e

satisfaction that a particular case involves the testing of the vires of any Act or regulation,
and 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."
In the case of Dharambir Khattar vs Union of India & Another19, the application for
reference to the High Court under Section 395, CrPC ought to have been allowed. It is
furthermore the case of the petitioner that the case pending before the said Special Judge
involves a substantial question of law as to the interpretation of the Constitution and the
determination of which is necessary for the disposal of the case and, therefore, this court
ought to exercise the powers conferred upon it under Article 228 of the Constitution of India
by withdrawing that case from the Special Judge and thereafter either dispose the case itself
or determine the question of law and return the case to the Special Judge for disposal in
conformity with the decision of this court.
A reference was made to the decision of the Supreme Court in the case of Hukam Chand
Shyam Lal v. Union of India20 as also to the Supreme Court decision in People's Union of
Civil Liberties (PUCL) v. Union of India.21
The Supreme Court in State v. Navjot Sandhu22, that this is not a case for exercise of power
under Article 227 of the Constitution and the same cannot be used as a disguise for an appeal
19

on 21 November, 2012
(1976) 2 SCC 128
21
1971 (1) SCC 301.
22
2003 (6) SCC 461
20

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which is not provided by the statute. Secondly, assuming that we agree with the request of the
petitioner and quash the impugned order dated 02.11.2007, where does it take the petitioner.
The fact remains that by quashing the order dated 02.11.2007, a reference to this court does
not automatically ensue. All that it means is the order rejecting the reference is set aside.
In the case of Sessions Judge vs State23decline to answer the reference and questions raised
by the learned Judge and referred to this Court as, Reference itself is wholly untenable and
unwarranted. With this, present Reference is disposed of.
In the case of In Re: M. Raja Ram Reddy24, references should be made only when the court
is satisfied that a case pending involves a real and substantial question as to the validity of the
act or regulation. A mere plea that an act is ultra-virus is not sufficient.
In case of Brajesh Bahudur Singh v. State of Jharkhand25, the subordinate cannot make a
reference to high court unless question refer to arise in a particular case is pending before it.
In the case of In Re A. S. Krishna26, the court will not answer the hypothetical question of
law. Also in case of People for Animal, Haryana v. State of Haryana27, court making a
reference to the high court, even if takes objection to jurisdiction may release while
forwarding a reference or thereafter can either commit the accused to jail or release him on
bail. In the case of P.P v. Dr. B. Krishna Sami28, in an appeal against the judgement founded
on the decision given on reference under section 395. It is not open to single judge to review
the decision.
In the case of State Of Orissa Vs. Hari Behera29, the court has discussed the
Constitutionality Validity of section 395.According to Section 395(1) of the Code of
Criminal Procedure, 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

23

on 25 March, 2013
1952
25
AIR 2005
26
1954
27
2006
28
1957
29
LAWS(ORI)-1993-11-4, Decided on November 04,1993
24

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subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and
the reasons therefore, and refer the same for the decision of the High Court.
Article 228 of the Constitution also provides that if the High Court is satisfied that a case
pending in a Court subordinate to it involves a substantial question of law as to the
interpretation of this Constitution the determination of which is necessary for the disposal of
the case, it shall withdraw the case and may:
1. Either dispose of the case itself; or
2. Determine the said question of law and return the case to the Court from which the
case has been so withdrawn together with a copy of its judgment on such question,
and the said Court shall on receipt thereof proceed to dispose of the case in
conformity with such judgment.
While making a reference to the High Court the subordinate Court shall state a case setting
out its opinion and the reasons therefore. But, the subordinate Court cannot make a reference
on the ground that a different view of law was taken by some other High Court. It must
follow the law laid down by the High Court to which that Court is subordinate.
REFERENCE ON OTHER QUESTION
According to Section 395(2) of the Code of Criminal Procedure, a Court of Session or a
Metropolitan Magistrate may, if it or he thinks fit in any case j ending before it or him to
which the provisions of Section 395(1) of the Code do not apply, refer for the decision of the
High Court any question of law arising in the hearing of such case.
The reference under Section 395(2) of the Code can be made only on a question of law and
not on a question of fact. The question referred to must have arisen in the hearing of the case
but not a hypothetical question of law.
PROCEDURE WHEN REFERENCE IS IN PENDING
As per Section 395(3) of the Code of Criminal Procedure, any Court making a reference to
the High Court under Section 395 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.

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BIBLIOGRAPHY
1. K.N. Candrasekharan Pillai (rev.), R.V. Kelkar, Lectures on Criminal Procedure, 4th
ed. 2006, Eastern Book Company, Lucknow.
2. P. Sarkar and P.M. Bakshi (rev.), S.C. Sarkar, The Law of Criminal Procedure, 7th ed.
1996, rep. 2001, India Law House, New Delhi.
3. Y.V.Chandrachud (rev.), Ratanlal and Dhirajlal, The Code of Criminal Procedure,
16th ed. 2002, rep. 2003, Wadhwa & Co. Nagpur, New Delhi.
4. M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law
House, Calcutta, 1987.
5. Matthew lippman , Contemporary criminal Law; Concepts, cases, and controversies,
SAGE Publications, United States Of America, 1st and 2nd Edition, 2007 and 2010
6. P. Ramanatha Aiyar, Code of Criminal Procedure, Modern Publishers (India),
Lucknow, 1999.
7. http://www.pucl.org/Topics/Law/2003
8. www.indiankaknoon.com
9. www.legalservicesindia.com
10. www.vakilno1.com
11. www.manupatra.com
12. www.lawcommissionofindia.nic.in
13. www.scconline.com

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