Section 436 BNSS: Reference to High Court

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 436 BNSS at a Glance

Section 436 BNSS deals with reference to High Court. It replaced Section 395 CrPC on 1 July 2024.

Was CrPC

Section 395 →

Section 436 BNSS Bare Act Text

(1) 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 therefor, and refer the same for the decision of the High Court.

Explanation.

In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.

(2) A Court of Session may, if it thinks fit in any case pending before it to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) 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.

Source: Section 436, Bharatiya Nagarik Suraksha Sanhita, 2023

Section 436 BNSS in Simple Words

Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is headed Reference to High Court.

Where a Court is satisfied that a pending case involves a question as to the validity of an Act, Ordinance or Regulation, or of any provision in it, the determination of which is necessary for the disposal of the case, and is of opinion that it 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 and refer it for the decision of the High Court.

A Court of Session may, if it thinks fit, refer any question of law arising in the hearing of a case to which Section 436(1) BNSS does not apply.

When Section 436 BNSS Applies

  • Any Court that is satisfied that a case pending before it involves a question as to the validity of an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that it 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, shall state a case setting out its opinion and the reasons and refer it for the decision of the High Court.
  • For the purposes of Section 436 BNSS, a Regulation means any Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
  • In a case pending before it to which Section 436(1) BNSS does not apply, a Court of Session may, if it thinks fit, refer for the decision of the High Court any question of law arising in the hearing of the case.
  • Any Court making a reference to the High Court under Section 436(1) BNSS or Section 436(2) BNSS may, pending the decision of the High Court on the reference, either commit the accused to jail or release him on bail to appear when called upon.

Example of Section 436 BNSS

Suresh is the accused in a case pending before a Court of Session. A question of law arises in the hearing of the case, and Section 436(1) BNSS does not apply to it. Under Section 436(2) BNSS, the Court of Session may, if it thinks fit, refer the question of law for the decision of the High Court. Under Section 436(3) BNSS, pending the decision of the High Court on the reference, the Court of Session may either commit Suresh to jail or release Suresh on bail to appear when called upon.

When Section 436 BNSS Does Not Apply

  • Section 436(1) BNSS speaks of a Court stating a case and referring it for the decision of the High Court. It does not deal with the disposal of the case after the High Court decides, which is found in Section 437 BNSS, Disposal of case according to decision of High Court.
  • Section 436(2) BNSS speaks of a Court of Session referring a question of law to the High Court. It does not deal with the High Court calling for records to exercise powers of revision, which is found in Section 438 BNSS, Calling for records to exercise powers of revision.

Section 436 BNSS in the CrPC (Previous Law)

Section 436 BNSS replaced Section 395 CrPC from 1 July 2024.

From 1 July 2024, Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 395 of the Code of Criminal Procedure, 1973 under the same heading, Reference to High Court. Section 436(2) BNSS names a Court of Session, where Section 395(2) CrPC named a Court of Session or a Metropolitan Magistrate. Section 436(1) BNSS, the Explanation to Section 436 BNSS and Section 436(3) BNSS have the same text as Section 395(1) CrPC, the Explanation to Section 395 CrPC and Section 395(3) CrPC.

Each sub-section below names its own source.

FAQs on Section 436 BNSS

When must a Court refer a question as to the validity of an Act to the High Court under Section 436 BNSS?▼

Under Section 436(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Court that is satisfied that a case pending before it involves a question as to the validity of an Act, Ordinance or Regulation, or of any provision in it, the determination of which is necessary for the disposal of the case, and is of opinion that it 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, shall state a case setting out its opinion and the reasons and refer it for the decision of the High Court.

Which Court may refer other questions of law under Section 436(2) BNSS?▼

Section 436(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 names a Court of Session. In a case pending before it to which Section 436(1) BNSS does not apply, the Court of Session may, if it thinks fit, refer for the decision of the High Court any question of law arising in the hearing of the case.

What may the Court do with the accused while a reference under Section 436 BNSS is pending before the High Court?▼

Under Section 436(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Court making a reference to the High Court under Section 436(1) BNSS or Section 436(2) BNSS may, pending the decision of the High Court on the reference, either commit the accused to jail or release him on bail to appear when called upon.

What changed from Section 395 CrPC to Section 436 BNSS from 1 July 2024?▼

From 1 July 2024, Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 395 of the Code of Criminal Procedure, 1973. Both have the same heading, Reference to High Court. Section 436(2) BNSS reads A Court of Session may, if it thinks fit in any case pending before it, where Section 395(2) CrPC read A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him. Section 436(1) BNSS, the Explanation to Section 436 BNSS and Section 436(3) BNSS have the same text as Section 395(1) CrPC, the Explanation to Section 395 CrPC and Section 395(3) CrPC.

Section 436 BNSS: Sub-sections Explained

Section 436(1) BNSS: Reference to High Court

▶

Bare Act Text

(1) 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 therefor, and refer the same for the decision of the High Court.

Explanation.

In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.

Previous Law

CrPC 395 → Section 436(1) BNSS

Section 436(2) BNSS: Reference to High Court

▶

Bare Act Text

(2) A Court of Session may, if it thinks fit in any case pending before it to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

Previous Law

CrPC 395(2) → Section 436(2) BNSS

Section 436(3) BNSS: Reference to High Court

▶

Bare Act Text

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) 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.

Previous Law

CrPC 395(3) → Section 436(3) BNSS

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Sources: Bare Act Text, Bharatiya Nagarik Suraksha Sanhita, 2023 · Last updated: 22 Oct 2026 ·