Section 436 BNSS: Reference to High Court (Formerly Section 395 CrPC)

Section 436 of Bharatiya Nagarik Suraksha Sanhita, 2023: Reference to High Court

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 436

Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 395 of the CrPC, 1973) provides for reference to the High Court by subordinate criminal courts on questions regarding the constitutional validity of Acts, Ordinances, or Regulations.

Mandatory Reference on Legislative Validity: 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 it is invalid but has not been so declared by High Court or Supreme Court, it shall refer the question to the High Court.
Discretionary Reference on Question of Law: A Court of Session or Metropolitan Magistrate may refer any other question of law arising in the hearing of the case to the High Court.
Stay & Remand Pending Reference: The Court may either commit the accused to jail or release them on bail pending the High Court's decision.

Key Landmark Precedents:

Central Bank of India v. Vrajlal Kapurchand Gandhi, (2003) 6 SCC 573: The Supreme Court held that subordinate courts cannot declare a statute unconstitutional; their sole recourse is to make a reference under Section 395 CrPC (Section 436 BNSS).
State of Bombay v. F.N. Balsara, AIR 1951 SC 318: Discussed the scope of constitutional references by criminal courts challenging statutory vires.

Courtroom Practice & Strategic Litigation Guidance:

If a criminal prosecution is founded on a municipal by-law, notification, or state regulation that is patently ultra vires parent legislation, move the trial court under Section 436 to refer the constitutional question to the High Court.