What is a Reference in Court

What is Reference?

Section 395(1) provides that where any court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance or 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. Likewise, a court of sessions or a Metropolitan Magistrate may also make reference for the decision of the High Court any question of law arising in a case pending before the court.

Object of Reference

· Validity of laws possibly in conflict with the Constitution should be decided by the highest court in the state authoritatively and quickly.

· Enable subordinate courts to obtain in non-appealable cases the opinion of the High Court on a question of law and thereby avoid commission of an error which could not be remedied later on.

Conditions to be satisfied for a Reference to be made

· Court to be satisfied that the question of validity of an Act, Ordinance or Regulation or any provision contained therein is raised in a case pending before it.

· Court to be satisfied that the determination of such question is necessary for the disposal of the case.

· Court must be of the opinion that such Act, Ordinance or Regulation is necessary or inoperative but has not been so declared by a Superior Court.

Procedure followed

· Right of the court to make reference and a party to the proceeding cannot directly approach the High Court for making a reference.

· A court making reference may, pending the decision of the High Court on such reference, commit the accused to jail or release him on bail.

· Then, the High Court will pass such order on reference as it thinks fit and will send a copy of it to the court by which the reference was made and the court will dispose of the case in conformity with the order of the High Court.

· The High Court may also direct by whom the costs of such reference to be paid.

Difference between REFERENCE and APPEAL

REFERENCE

APPEAL

Power vested only in the court

Right of appeal is available to the party.

Can be made only to High Court

Can be filed in a Superior court, which may or may not be High Court.

Ground limited to the questions relating to the Constitutional validity of any Act, Ordinance or Regulation.

Grounds of appeal are very wide.

Section 395 and Section 113 Code of Civil Procedure

Section 113 of the Code of Civil Procedure, 1908 read with O XLVI makes provision for reference by a Subordinate Court to the High Court.

Similar provision is made under Section 395 of the Code.

Difference between ARTICLE 228 and SECTION 395

ARTICLE 228

SECTION 395

Transfer of certain cases to High Court

Refers to the questions regarding the validity of any Act, Ordinance or Regulation or of any provision

Refers to Substantial question of law as to the interpretation of the constitution, nor vice-versa. But a question as to the validity of any Act may involve interpretation of the Constitution in one form of the other.

Ø 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 the Constitution, it shall withdraw the case to itself and dispose of the same.