In India, we follow a very well established hierarchy of courts whereby the Courts of Magistrates and Courts of Sessions Judge are the trial courts and considered to be sub-ordinate criminal courts and High Court and Supreme Court are appellate and supervisory courts and are considered superior courts. The superior courts have been established by the India Constitution and therefore, enjoy powers of reference and revision of a case either decided by or pending before a trial court. Thus, this article focuses on such reference and revisionary powers of superior courts under the Criminal Procedure Code, 1973.
Reference Powers of High Court
The term ‘reference’ means to transfer or send something for the opinion of the receiver on the matter. In this situation, the reference power of High Courts means that the High Court is empowered to take cases referred to it by subordinate criminal courts. It means that the Courts of Magistrates and Sessions Judge may, on fulfilling the requirement under the Cr.P.C., refer any case to the High Court of the State stating the questions referred.
Section 395 of Cr.P.C deals with the reference powers of the High Courts in a State. Under this provision, the subordinate courts are allowed to refer a case to the High Court for its opinion if the subordinate court considers is necessary. The provision entails two situations when the case can be referred to the High Court:
- When the validity of an Act, Ordinance or Regulation is doubtful and the court considers it invalid.
- When, in any case pending before the subordinate court, the court believes that there is a question of law that needs to be addressed by the High Court.
Validity of Act, Ordinance or Regulation
According to Section 395(1) of CrPC, when a case is pending before the trial and it involves a question with respect to the validity of any law or rules and regulation in the country and in the opinion of the court such law is invalid but it is not yet declared invalid by the superior courts, therefore, the trial court can refer the matter to the superior courts to check the validity of such laws.
The essential requirements for reference under this section are:
I. The case must be pending before the trial court
It is an essential requirement that the case in which a question of the validity of law must be pending and not already decided by the court. The provision does not provide for any specific stage of the proceeding when the case can be referred and thus, the general practice is that a trial court can refer the matter to High Court at any stage of the proceeding when it considers it necessary. However, if the trial or case is disposed of, it cannot be then referred by way of reference. It has to be taken to superior only the parties by way of revision.
II. It must involve a question that directly or indirectly challenges the validity of a law
The main question before a trial court is always whether the accused person is guilty of the charged offence or not, the validity of a law is not an issue before the trial court. However, during the course of the trial, arguments may be raised with respect to the validity of a law or ordinance under which the person is accused of an offence. For instance, in the Shopian case, the accused were military officers empowered to search and seize under the Armed Forces Special Powers Act (AFSPA) who were charged for rape and murder. The power of the officers was challenged by the Prosecutor claiming that the AFSPA is invalid and unconstitutional.
III. The law must be in the form of an Act, Ordinance or Regulation
The provision does not require a law to specifically be primary legislation. The court can also refer matters with respect to an Ordinance or a delegated legislation. For instance, the first case under the Negotiable Instruments (Amendment) Ordinance, 2015, i.e. Dasrathroop Singh Rathore v. the State of Maharashtra (CRIMINAL APPEAL NO. 2287 OF 2009), the objection was raised that the jurisdiction to courts given under the ordinance is not valid.
IV. The court must believe that such a law is invalid
The court must have reasons to believe that the law is invalid by virtue of it being arbitrary or discriminatory or otherwise violating the principles of natural justice or any provision of the Constitution.
V. The validity of the law must not have been already settled by a High Court or the Supreme Court
Case Involving Question of Law
According to Section 395(2) CrPC, if a case does not fall under clause 1 or does not fulfil any or more of the requirements abovementioned, the trial court can still refer the matter to High Court under clause 2 if the case involves a question of law.
A question of law means which requires the application of certain legal principle and not one where the existence of a fact is in dispute. For instance, say a case is based on the extra-judicial confession given by the accused person to his friend who informs the police and deposes before the court. Here, the question of whether the confession was true and voluntary is a question of fact and whether the court can convict the accused based on such confession is a question of law.
Revisionary Powers of Sessions Court and High Court
Revision means where a higher court calls for the record of the case decided by a court subordinate to it to check whether the jurisdiction, procedure and legal principles were duly followed while disposing of the case. Revision is different from appeal and review in several ways. On one hand, revision means checking the judgment of a lower court only with respect to the procedural and jurisdictional aspect whereas in appeal the entire case is heard again. Further, in revision, there need not be a hearing conducted.
The court can call for records and decide on that basis. In the appeal, there is always separate hearing from the very of beginning. Lastly, review means analysis of a judgment by the court which gave the judgment.
Sections 399 and 401 CrPC deal with the revisionary powers of the Sessions Court and High Courts respectively. Section 399 provides that a Sessions Court shall have the same revisionary powers as the High Court under Section 401 and the procedure to be followed by the Sessions Court is also the same. Therefore, the powers of the two courts are analysed together under one common head.
Prerequisites to the Exercise of Revisionary Powers
- Calling of Records of Case
The court, first of all, must call for the records of the case which is to be revised from the court which previously heard the matter. The records contain the FIR or Complaint, the Witness Statements recorded under Section 161 CrPC, the Confession recorded under Section 164 CrPC (if any), the deposition of witnesses before the court, their examination-in-chief and cross-examination, any documents brought on record and lastly, the original or certified copy of the judgment of the court from which the revision is intended.
- The Party must be Unsatisfied.
Revision of judgment, like appeal, can be brought by either party to a case who is unsatisfied by the findings of the court which rendered prior judgment. However, the court can revise the judgment only on procedural aspects and not on its merits.
Section 401 states that the court may “in its discretion” exercise revisionary powers to grant relief to a party. The term discretion awards wide powers upon the courts to accept or refuse the revision of the judgment. The courts are required to use this discretion wisely and to ensure that justice is not hampered.
Revisionary powers allow the court to interfere with the decision of a lower and to rectify any error caused by it and it, therefore, is the first step to acquire the faith of people in the judiciary. If this power is misused or abused, the only remedy left is appeal which requires huge time and expense of the parties.
Available Remedies under Revisionary Jurisdiction
The courts, in their revisionary jurisdiction, are entitled to use all powers and grant all remedies as provided under Section 386, 389, 390 and 391 of the CrPC. These remedies can be listed as follows:
- If the revision petition is filed by the Prosecutor against an order of acquittal, the revisionary court may reverse the order of acquittal into conviction or order that the case is further investigated and if any evidentiary material is found, the accused be retried.
- If the revision is for an order of conviction filed by the accused person, the court may acquit the accused or order that a retrial is conducted and due procedure of law be followed.
- The court, in a revision from conviction order, may also inquire upon the findings of the lower court in which the sentence is decided and may alter such sentence if necessary.
- The court may, in an order of conviction, change the nature of the sentence imposed upon the accused by the lower court. It means that the revisionary court may alter a sentence of rigorous imprisonment to simple imprisonment.
- If the revision is filed for the augmentation of the sentence imposed by the lower court, the court may change the sentence and enhance it according to the materials available.
- When a person has filed an appeal against the conviction order of the lower court before an appellate court, the revisionary court may suspend the sentence of the accused till the appeal is disposed of and may enlarge the accused on bail.
- If the revision is against an order of acquittal, the revisionary court may order to arrest the accused who was earlier released by the lower court. In such arrest, the accused have all the rights of an arrested person as guaranteed by the CrPC.
These are the remedies that can be sought in an application for revision of a judgment of a trial court. Revisionary powers are enjoyed by Sessions Court and High Court but the nature and extent of the power are the same as aforementioned. A person can file a revision on the basis of the court from the order of whose a revision is preferred.
- V. Kelkar, Lectures on Criminal Law (8th ed. 2016)
- N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure (6th ed. 2014)
- D. Basu, Criminal Procedure (6th ed. 2014)