INTRODUCTION

The Code of Criminal Procedure (CrPC) is a set of rules that guide how criminal cases are handled in India. One important part of the CrPC is called a "Reference". This is when a court asks a higher court or authority for guidance on a specific legal question or issue. This helps ensure that justice is served fairly and correctly.

Think of a Reference like seeking advice from an expert. When a court is unsure about a legal point, they can ask a higher court for clarification. This helps resolve complex issues and ensures consistency in the justice system. We'll explore how References work under the CrPC and why they're important in India's legal framework.

Section 395-396 of Chapter XXX of Criminal Procedure Code deals with Reference.

CONDITIONS FOR REFERENCE [SECTION 395]:

Every Court subordinate to the High Court is required to make a reference to the High Court if the following conditions are satisfied.

• The case pending before the court involves a question about the validity of:
  • Any Act
  • Ordinance
  • Regulation
  • Any provision contained therein
• Determining this question is necessary for disposing of the case.
• The court believes that the Act, ordinance, regulation, or provision is invalid, but it has not been declared invalid by the supervising High Court
• If these conditions are met, the court shall:

1. Prepare a case stating its opinion and reasons
2. Refer the case to the High Court for a decision

Additionally, the Court of Session or a Metropolitan Magistrate may refer any question of law (even if not covered above) to the High Court for a decision during the hearing of the case.

• During the pendency of the reference, the trial court may:

1. Commit the accused to jail
2. Release the accused on bail with instructions to appear when necessary.

Case Laws

AS Krishna in Re 1954 Madras High Court

It was held by the court that question must have arisen during the hearing of the case. Hypothetical question or future question will not be decided by High Court. 

Following references have not been allowed under Section 395 of the CrPC:

State v B.B. Parekh, 1992 CrLJ 1222 (Karnataka)

A reference questioning whether inordinate delay in prosecution violates the fundamental right under Article 21 of the Constitution

State v Ram Chander Agarwala AIR 1979 SC 87

A reference of points of law already settled by decisions of the High Court, where the Magistrate doubts the correctness of those decisions.

Qazi Md. Hanif, 1990 CrLJ 171 (Bombay)

A reference based on a different view of law taken by another High Court. The subordinate court must obey the law laid down by the High Court to which it is subordinate.

DISPOSAL OF CASE AFTER REFERENCE HAS BEEN MADE UNDER SECTION 395:

Section 396 of the CrPC outlines the procedure after a reference is made to the High Court:

1. 1. The High Court will pass an order as it deems fit.
   2. A copy of the order will be sent to the court that made the reference.
   3. The court that made the reference shall dispose of the case in accordance with the High Court's order.
   4. The High Court may also direct who shall bear the costs of the reference.

In essence, the High Court has the final say in the matter, and its order is binding on the lower court. The lower court must dispose of the case according to the High Court's direction, and the costs of the reference are determined by the High Court's order.

CONCLUSION

The Code of Criminal Procedure (CrPC) provides a comprehensive framework for criminal cases in India, ensuring a fair trial for the accused and protecting the rights of victims. Reference, a crucial aspect of the CrPC, enables courts to seek expert opinions or higher court guidance. This ensures efficient and effective justice delivery, making the criminal justice system functional and fair.

The following are the key takeaways from the discussion on reference under the CrPC:

• Reference is a crucial aspect of the CrPC, enabling the courts to seek the opinion of a higher court or expert in a particular field.
• The CrPC provides for reference to be made by the trial court, appellate court, or the High Court.
• The provisions for reference ensure that the accused receives a fair trial, and the rights of the victim are protected.
• The CrPC ensures that the criminal justice system functions efficiently, and justice is delivered in a timely and effective manner.

In light of the above, it is evident that the provisions for reference under the CrPC play a vital role in ensuring that justice is delivered fairly and efficiently in India.