Legal Provisions of Section 395 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
This section empowers a Court subordinate to the High Court to make a reference to the High Court under sub-section (1) if following conditions exist:—
(1) The case pending before it must involve a question as to validity of any Act, Ordinance or Regulation. A mere plea raised by a party challenging the validity of an Act,’ is not sufficient to make a reference to the High Court unless the Court itself is satisfied that a real and substantial question as to validity of the Act is actually involved for the disposal of the case.
ADVERTISEMENTS:
(2) Secondly, the Court should be of the opinion that such Act, Ordinance Regulation, as the case may be, is invalid or inoperative but has not been so declared by High Court or by the Supreme Court.
(3) While making a reference to the High Court, the Court shall refer to the case setting out its opinion and reasons for making a reference.
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The section does not permit a reference with a view to resolve a conflict of authority where different views on a certain point of law have been expressed by some High Court the reason being that the Court desiring to make a reference is supposed to follow the law laid down by the High Court to which it is subordinate.
ADVERTISEMENTS:
It is necessary for the Court making a reference to give its own opinion on the law which is sought to be referred to for clarification because the High Court is not expected to answer hypothetical questions of law however interesting or important they might be.
It would be pertinent to mention here that Article 228 of the Constitution also empowers the High Court to withdraw a case from the subordinate Court to itself and to dispose it off after deciding the question of validity of law or Act etc. involved therein for clarification.
The High Court of Kerala in Kerala Streevedi v. State, held that the High Court rightly refused to transfer a case on the ground that there was transfer of Magistrate who had recorded evidence and therefore, the case should be transferred to the same Magistrate who was posted elsewhere on promotion.
In the instant case, in a complaint regarding outraging modesty of a woman, the Magistrate who had recorded the evidence was posted elsewhere on promotion and the complainant had filed application for transfer of his case to the Court of said Magistrate where he had joined after promotion, on the ground that the Magistrate who had no occasion to record the evidence or observe demeanour of witnesses could not take decision in the case.
ADVERTISEMENTS:
But the said application was dismissed by the High Court. Subsequently, a voluntary organisation fighting for the cause of gender justice had filed a writ petition by invoking Article 228 of the Constitution for the same relief as sought by the complainant.
The High Court held that under Section 326, Cr. P.C. upon evidence recorded by the predecessor Magistrate, the successor Magistrate manning the Court is empowered to proceed-from the next stage of the case and validity of Section 326 was not in question before Court so as to invoke Article 228 of the Constitution. Hence the petition filed by the voluntary organisation could also not be allowed.