The Law’s Own Remedy

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced significant reforms in criminal procedure, replacing the Criminal Procedure Code (CrPC). Among its various provisions, the concepts of reference and revision play a crucial role in ensuring judicial scrutiny, correcting legal errors, and maintaining the integrity of the justice system. Reference allows lower courts to seek guidance from the High Court on constitutional or legal questions, ensuring uniformity in legal interpretation. Revision, on the other hand, empowers higher courts to examine and rectify errors in the decisions of subordinate courts, preventing miscarriage of justice.

When can a court refer a case to the High Court regarding the validity of an Act, Ordinance, or Regulation?

A court can refer a case to the High Court when:

• The case involves a question about the validity of any Act, Ordinance, or Regulation.
• The determination of the question is necessary for the disposal of the case.
• The court believes that the Act, Ordinance, or Regulation is invalid or inoperative.
• The Act, Ordinance, or Regulation has not already been declared invalid by the High Court to which the court is subordinate or by the Supreme Court.
• In such cases, the court must state its opinion with reasons and refer the case to the High Court for a decision.

Can a Sessions Court refer a legal question to the High Court even if it does not involve the validity of an Act, Ordinance, or Regulation?

Yes, a Sessions Court may refer any question of law arising during the hearing of a case to the High Court if it thinks fit, even if the provisions related to validity do not apply.

What happens to the accused while the High Court is deciding on the reference?

The court making the reference may either:

• Commit the accused to jail.
• Release the accused on bail until the High Court’s decision is made.

What must the High Court do after receiving a reference?

The High Court must pass an order on the reference and send a copy of the order to the referring court. The referring court must then dispose of the case in conformity with the High Court’s decision.

Can the High Court decide who pays the costs of the reference?

Yes, the High Court has the authority to direct who will bear the costs of the reference.

Who has the power to call for records and examine them for revision?

The High Court or a Sessions Judge may call for and examine the record of any proceeding before an inferior criminal court within its jurisdiction to check:

• The correctness, legality, or propriety of any finding, sentence, or order.
• The regularity of the proceedings.

Can the High Court or Sessions Judge suspend the execution of a sentence during revision?

Yes, when calling for the record, they may:

• Direct that the execution of any sentence or order be suspended.
• If the accused is in confinement, order their release on a bond or bail bond until the examination of the record is completed.

Are all Magistrates considered inferior to the Sessions Judge for the purpose of revision?

Yes, all Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, are deemed inferior to the Sessions Judge for revision purposes.

Can the High Court or Sessions Judge exercise revisionary powers over interlocutory orders?

No, revisionary powers cannot be exercised concerning interlocutory orders passed in any appeal, inquiry, trial, or other proceeding.

Can a person file a revision application with both the High Court and the Sessions Judge?

No, if a person has already applied for revision to either the High Court or the Sessions Judge, they cannot file a further application with the other.

Does revisional jurisdiction allow reappreciation of evidence?

No, revisional jurisdiction does not involve reappreciation of evidence. It is used to examine the correctness, legality, or propriety of a finding in light of the limitations on the right to appeal, as was held in Islamuddin v. State and Bundoo v. Mahrul Nisa.

Is revision a right of a party?

No, revision is not a right but a procedural facility available to a party, as was held in SEBI v. Classic Credit Ltd.

Can revisional powers be exercised over orders that affect substantial rights?

Yes, any order that substantially affects the rights of the accused or decides certain rights of the parties is not considered an interlocutory order and can be subject to revision, as was held in Mohit v. State of U.P.

What powers does the High Court or Sessions Judge have when examining records under revision?

They may direct the Chief Judicial Magistrate or a subordinate Magistrate to conduct further inquiries into:

• Complaints dismissed under Section 226 or Section 227(4) of the BNSS.
• Cases where an accused has been discharged.

Can a discharged person be subjected to further inquiry under revision?

Yes, but only if they have been given an opportunity to show cause why such an inquiry should not be directed.

What revisionary powers does a Sessions Judge have?

A Sessions Judge may exercise all or any of the powers that the High Court exercises under its revisionary jurisdiction when dealing with a case where the record has been called for by them.

Is the Sessions Judge’s decision in revision final?

Yes, if a revision application is decided by the Sessions Judge, no further revision application by the same person can be entertained by the High Court or any other court.

What powers does an Additional Sessions Judge have?

An Additional Sessions Judge has the same powers as a Sessions Judge for any case transferred to them by the Sessions Judge under general or special orders.

What revisionary powers does the High Court have?

The High Court can exercise any powers conferred on:

• A Court of Appeal under Sections 427, 430, 431, and 432 of the BNSS.
• A Court of Session under Section 344 of the BNSS.
• If the Judges composing the court are equally divided, the case shall be disposed of as per Section 433 of the BNSS.

Can the High Court pass an order to the prejudice of the accused?

No, no order under revision shall be made to the prejudice of the accused unless they have had an opportunity to be heard, either personally or through an advocate.

Can the High Court convert an acquittal into a conviction in revision?

No, the High Court cannot convert a finding of acquittal into one of conviction in revision.

Can a party seek revision if they had the option to appeal but did not file one?

No, if an appeal was available but not filed, a revision cannot be entertained.

What happens if a revision application is mistakenly filed instead of an appeal?

If the High Court is satisfied that a revision application was filed under an erroneous belief that no appeal lay, it may treat the application as an appeal and deal with it accordingly.

How does the High Court manage multiple revision applications from the same trial?

If multiple persons convicted in the same trial apply for revision to different courts, the High Court will decide which court should handle the matter. It may transfer applications from one court to another for general convenience and importance of issues.

Does a party have the right to be heard in a revision case?

No, unless expressly provided by law, no party has the right to be heard in revision proceedings. However, the court may allow a party to be heard if it deems fit.

How are High Court orders in revision cases certified to lower courts?

The High Court or Sessions Judge must certify their decision or order to the lower court. That court must then implement the decision and amend the record accordingly.

Therefore, the provisions of reference and revision under the Bharatiya Nagarik Suraksha Sanhita, 2023, serve as vital mechanisms for judicial oversight and legal correction. While reference ensures that lower courts adhere to constitutional and statutory principles by seeking clarification from the High Court, revision empowers superior courts to prevent legal errors and injustice. These provisions enhance the efficiency, fairness, and reliability of the criminal justice system by providing necessary checks on judicial decisions. As the BNSS, 2023, continues to shape the legal landscape, the effective use of reference and revision will be essential in upholding the principles of justice and ensuring that judicial decisions remain fair, consistent, and in accordance with the rule of law.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.