Section 395 CrPC: Reference to High Court

Code of Criminal Procedure, 1973

Section 395 CrPC at a Glance

Section 395 CrPC deals with reference to High Court. From 1 July 2024 it is replaced by Section 436 BNSS.

Now BNSS

What Section 395 CrPC Says

395. Reference to High Court
(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 (10 of 1897), or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him 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 395, Code of Criminal Procedure, 1973

Section 395 CrPC in Simple Words

Section 395 of the Code of Criminal Procedure, 1973 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 or a Metropolitan Magistrate may, if it or he thinks fit, refer any question of law arising in the hearing of a case to which Section 395(1) CrPC does not apply.

When Section 395 CrPC 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 395 CrPC, 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 or him to which Section 395(1) CrPC does not apply, a Court of Session or a Metropolitan Magistrate may, if it or he 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 395(1) CrPC or Section 395(2) CrPC 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 395 CrPC

Ramesh is the accused in a case pending before a Court. The Court is satisfied that the case involves a question as to the validity of a provision contained in an Act, the determination of which is necessary for the disposal of the case. The Court is of opinion that the provision is invalid, but it has not been so declared by the High Court to which the Court is subordinate or by the Supreme Court. Under Section 395(1) CrPC, the Court shall state a case setting out its opinion and the reasons, and refer it for the decision of the High Court. Under Section 395(3) CrPC, pending the decision of the High Court, the Court may either commit Ramesh to jail or release Ramesh on bail to appear when called upon.

When Section 395 CrPC Does Not Apply

Section 395(1) CrPC 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 396 CrPC, Disposal of case according to decision of High Court.
Section 395(2) CrPC speaks of a Court of Session or a Metropolitan Magistrate 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 397 CrPC, Calling for records to exercise powers of revision.

Section 395 CrPC Under BNSS 436: What Changed

Section 395 CrPC is now covered under Section 436 BNSS.

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.

View detailed comparison (CrPC 395 vs BNSS 436) →

FAQs on Section 395 CrPC

When must a Court refer a question as to the validity of an Act to the High Court under Section 395 CrPC?▼

Under Section 395(1) of the Code of Criminal Procedure, 1973, 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 Courts may refer other questions of law under Section 395(2) CrPC?▼

Section 395(2) of the Code of Criminal Procedure, 1973 names a Court of Session or a Metropolitan Magistrate. In a case pending before it or him to which Section 395(1) CrPC does not apply, the Court of Session or the Metropolitan Magistrate may, if it or he 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 395 CrPC is pending before the High Court?▼

Under Section 395(3) of the Code of Criminal Procedure, 1973, a Court making a reference to the High Court under Section 395(1) CrPC or Section 395(2) CrPC 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.

Where is Section 395 CrPC found in the Bharatiya Nagarik Suraksha Sanhita, 2023?▼

Section 395 CrPC is found in Section 436 BNSS, which has the same heading, Reference to High Court. Section 395(1) CrPC is found in Section 436(1) BNSS, Section 395(2) CrPC is found in Section 436(2) BNSS and Section 395(3) CrPC is found in Section 436(3) BNSS. The Explanation to Section 395 CrPC is found in the Explanation to Section 436 BNSS. The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973 from 1 July 2024.

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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 22 Oct 2026 ·