Legal provisions regarding reference on question of constitutional validity under section 395 of the Code of Criminal Procedure, 1973.
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 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.
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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:
(a) Either dispose of the case itself; or
(b) Determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such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.
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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:
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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.
