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NIVERSITY OF PETROLEUM & ENERGY S UNIVERSITY OF STUDIES COLLEGE OF LEGAL STUDIES
B.A., LL.B. (HONS.)
SEMESTER VI PROJECT FOR The Code of Criminal Procedure
“Reference under The Code of Criin!" Pocedure#$%'( (LLBL-212) Under the u!er"i#ion of$ Prof% &nu'ha" umar
)TO BE FILLED BY THE STUDENT*
NAME+ PRAS,ANT SING, SAP NO+ ROLL NO+
-.../0-.% R1-./$'.0.
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Ac2no3"ed4een5+ I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and this organization. I would like to extend m y sincere thanks to all of them. I am highly h ighly indebted to Prof% &nu'ha" umar for his guidance and constant supervision as well as for providing necessary information regarding the p roject & also for his support in completing my project Reference under The Code of Criminal Pocedure*1+,. . y thanks and appreciations also go to my classmates in developing the
project and people who have willingly helped me out with their abilities. I am also thankful to the I! "epartment of #$% and the library as well as without them the making of this project would have been b een next to impossible. I am thankful to and fortunate enough to get constant encouragement, support and guidance from my parents and friends who helped me in successfully completing this project.
T!6"e of Con5en57 1%) 2%)
/ntroduction &nal0#i# of the Pro"i#ion
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%) 3%) 4%)
ue#tion of la and fact Conclu#ion Bi'lio5ra!h0
In5roduc5ion %very court subordinate to the High 'ourt 'ou rt is re(uired to make a reference to the High 'ourt if the following conditions are satisfied) i*
!he !he cour courtt is is sat satis isfi fied ed that that a case case pendi pending ng bef befor oree it it inv invol olve vess a (ues (uesti tion on as as to to the the validity of any act+ ordinance+ regulation or any provision contained in any such law,
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and the determination of such (uestion is necessary for the disposal of the case before it. ii*
!he court court is of the opinio opinion n that that the law+le law+legal gal provis provision ion is invali invalid d or inoper inoperati ative ve but but has not been so declared by the High 'ourt to which that court is subordinate or by the upreme 'ourt.
hile making such a reference to the High 'ourt, the subordinate court shall state a case setting out its opinion and the reasons therefor. - mere plea raised by a party part y challenging the validity of the law is not sufficient and what is re(uired is the satisfaction of the court that a real and substantial (uestion regarding the validity v alidity of the law is involved. - court of session or a etropolitan agistrate may refer for the decision of the High 'ourt an y (uestion of law arising in the hearing of a case pending before such a court or magistrate. magistrate. uch a reference can be made only on a (uestion of law and not on (uestion of fact. !he (uestion referred to must have arisen in the hearing of the case and the High 'ourt will not decide hypothetical (uestions of law however interesting or important they may be. #nder the old code reference to the High 'ourt in respect of any other (uestion of law not involving any (uestion of the validity v alidity of a statutory provision was available only to $residency agistrates. #nder the present code this facility has been extend ed to essions udges and all the etropolitan agistrates./ !he 0aw 'ommissioners in 1/st 2eport observed3) 453.5. ub6section 73* of ection 153 provides that a $residency agistrate may refer any (uestion of law arising before him to the High 'ourt for a decision. 8ther magistrates and courts have no such power to consult the High 'ourt. !he reasons for confining this method to the $residency to the $residency agistrate are that their judgments are directly appealable to the High 'ourt and many judgments are not appealable at all9 and, apart a part from this, these courts are located in the same place as the High 'ourt. It has been said that this distinction between $residency agistrates and others should discontinue, the suggestion being that all courts should have the power of consulting the High 'ourt on (uestions (u estions of law. e e are satisfied that such a course would place too heavy a burden on the High 'ourts without any corresponding advantage. !he reference :to $residency agistrate; will be replaced by :etropolitan agistrate;. !hree things are re(uired under the sub6section 73*.
1 Kanshi Ram v. Lachman, Lachman , (1984) 1 Crimes 202 : 1984 Sim LC 1; Accused, In re, 1984 CrLJ 743 (Ker). 2 Vide La Vide La C!mmissi!"#s 41 s$ %e&!r$, '!. 1, &.284, &ara 32.3.
reference can be made only on a (uestion of law and not a (uestion of fact.5 !hirdly, the (uestion referred must arise :in the hearing of the case;.1 !he accused can;t by filing an application invoke the power of the agistrate for making reference under this section. !here should be subjective satisfaction of the agistrate on his own.= 2eference will not fall under sub6section 7/* if (uestion involved is not as to the validity of any -ct, 8rdinance or 2egulation.> !his section envisages a (uestion of law that may arise 4in the hearing of a case? which does not relate to the validity of any -ct, 8rdinance or 2egulation. !he court may find that the (uestion of law which has arisen is of such significance that it warrants a reference to the High 'ourt so that the case may be decided in light of the answer to the reference.@2eference is unwarranted when there is no inconsistency in the judgment. judgment.A !he ubordinate 'ourt can;t make reference under .5B= of the 'r.$.' 'r.$.'., ., on a point po int which is already covered by b y the decision of its own High 'ourt. !he reference can;t be made on the ground that some other High 'ourt has taken a different view. view.B #pon reference being made to the High 'ourt by the 'ourt of ession to rectify an error committed by the 'ommittal 'ourt, the High 'ourt would be well within its power to do so./C 2eference to High 'ourt lies under .5B= and mis(uoting of the provision of law in reference shall not result in its rejection.// !he (uestion whether the delay in trial violates right of speedy trial guaranteed under -rt.3/ of the 'onstitution can;t be subject6matter of reference under .5B=73*./3 3 Molla Fuzla Karim, (190) Karim, (190) 33 Ca 193; Shirish S. Welling v. Sangeeta A. Marathe, 2001 (2) (2) B!m L% 99 (B!m). (B!m). 4 Nanu, Nanu, (189) 1 B!m L% 21. Shirish S. Welling v. Sangeeta A. Marathe, 2001 (2) B!m L% 99 (B!m). * State v. al!antrai, 1991 al!antrai, 1991 (2) Crimes *79 (Ka"$+ B). 7 I"id. 8 #uazi Mohamed $ani% v. Mumtaz egum, egum , 1990 CrLJ 171 (B!m+ B) 9 ra&esh ahadur Singh v. State o% 'har(hand, 200 CrLJ 18 (19) (J-ar). 10 Ran&it Singh v. State o% )un&a" , A% 1998 SC 3148 : (1998) 7 SCC 149 : 1998 CrLJ 4*18 11 State o% Assam v. Amiruddin, 198* Amiruddin, 198* CrLJ 1913 (/a+ B).
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An!"87i7 of 5he Pro9i7ion here any 'ourt is satisfied that a case pending before it involves a (uestion as to the validity of any -ct, 8rdinance or 2egulation or of any provision contained in an -ct, 8rdinance or 2egulation, the determination of which is necessary for the disposal of the case, and is of opinion op inion that such -ct, 8rdinance, 2egulation or provision is invalid or inoperative, but has not been so declared by the High 'ourt to which that 'ourt is subordinate or by the upreme 'ourt, the 'ourt shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High 'ourt. %xplanation D In this section, 42egulation? means any 2egulation as defined in the Eeneral 'lauses -ct, /AB@ 7/C of /AB@*, or in the Eeneral 'lauses -ct of a tate. - 'ourt of ession or a etropolitan agistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of ub6ection 7/* do not apply, apply, refer for the decision decision of the High 'ourt any (uestion of law arising in the hearing of such case. -ny 'ourt making a reference to the High 'ourt under ub6ection 7/* or o r ub6ection 73* may, pending the decision of the High 'ourt thereon, either commit the accused to jail or release him on bail to appear when called upon. 0egal provisions regarding reference on (uestion of constitutional validity under section 5B= of the 'ode of 'riminal $rocedure, /B@5. -ccording to ection 5B=7/* of the 'ode of 'riminal $rocedure, where any an y 'ourt is satisfied that a case pending before it involves a (uestion as to the validity of any -ct, 8rdinance or 2egulation or of any provision contained in an -ct, 8rdinance or 2egulation, the determination of which is necessary for the disposal of the ca se, and is of opinion that such -ct, 8rdinance, 2egulation or provision is invalid or inoperative, but has not been so declared by the High 'ourt to which that 'ourt is subordinate or by the upreme 'ourt, the 'ourt shall state a ca se setting out its opinion and the reasons therefore, and refer the same for the decision of the High 'ourt. 12 State v. hi(a"hai )are(h, 1992 )are(h, 1992 CrLJ 1222 (Ka"$+B).
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-rticle 33A of the 'onstitution also provides that if the High 'ourt is satisfied that a case pending in a 'ourt subordinate to it involves a substantial (uestion of law as to the interpretation interpretation of this 'onstitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may) 7a* %ither dispose of the case itself9 or 7b* "etermine the said (uestion of law and return the case to the 'ourt from which the case has been so withdrawn together with a copy of its judgment on such (uestion, and the said 'ourt shall on receipt thereof proceed to dispose of the case in conformity with such judgment. judg ment. hile making a reference to the High 'ourt the subordinate 'ourt shall state a case setting out its opinion and the reasons therefore. Fut, the subordinate 'ourt cannot make a reference on the ground that a different view of law was taken by some other High 'ourt. It must follow the law laid down by the High 'ourt to which that 'ourt is subordinate. 2eference on other (uestion) -ccording to ection 5B=73* of the 'ode of 'riminal $rocedure, a 'ourt of ession or a etropolitan agistrate may, if it or he thinks fit in any case j ending before it or him to which the provisions of ection 5B=7/* of the 'ode do not apply, refer for the decision of the High 'ourt any (uestion of law arising in the hearing of such case. !he reference under ection 5B=73* of the 'ode can be made only on a (uestion of law and not on a (uestion of fact. !he (uestion referred to must have arisen in the hearing of o f the case but not a hypothetical (uestion of law. $rocedure when reference is in pending) -s per ection 5B=75* of the 'ode of 'riminal $rocedure, any 'ourt making a reference to the High 'ourt under ection 5B= may, pending the decision of the High 'ourt thereon, either commit the accused to jail or release him on bail to appear when called upon. !he philosophy of 2ight to peedy peed y trial has grown in age but its goals are yet unforeseen. 2ight to peedy !rail is a concept which deals with disposal of cases as soon as possible so as to make the udiciary more efficient and trustworthy. !he main aim of 2ight to peedy trial is to inculcate ustice in the society. It is the human life that necessitates human rights. Feing in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. !hus every right is a human right as that helps a human to live like a human being. !he very basic purpose p urpose for which every state machinery sets up the court system is to award justice to the victims of crimes. !he constitution of India imposes heavy duty on the judicial system for providing legal mechanism to deal with problem relating relating to imparting justice. !he setting up an independent judicial system, inclusion of fundamental rights and directive principles of state polices further shows the the commitment of our constitution makers in making
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the judicial system an effective organ of state machinery on which people can rely with trust and hope of justice. !he right to a speedy trial is first mentioned in that landmark document of %nglish law, the agna 'arta. -rticle 3/ declares that 4no person shall be deprived of his life or personal liberty except according to the procedure laid by law.? ustice Grishna Iyer while dealing with the the bail petition in Fabu ingh v. tate tate of #$, remarked, 8ur justice system even in grave cases, suffers suffers from slow motion syndrome which is lethal to fair trial whatever the ultimate decision. pe edy justice is a component of social justice since the community, community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings. 2ight to speedy trial is a concept gaining recognition and importance day by day. peedy trial is a fundamental right implicit in the gu arantee of life and personal liberty enshrined in -rticle 3/ of the 'onstitution and an y accused who is denied this right of speed y trial is entitled to approach upreme 'ourt under -rticle 53 for the purpose of enforcing such right. -nd this 'ourt in discharge of its constitutional obligation has the power to give n ecessary directions to the tate Eovernments and other appropriate ap propriate authorities for securing this right to the accused. Factor# For Pendenc0 Of The Ca#e#$ "elay in cases can be of two types) /. 'ourt system delay) !he delay from the time the case is admitted to the time it is taken up in trail. 3. "elay due to lawyers+ advocates and others) !he delay which takes place due the actions of lawyers+ advocates such as adjournments given etc. 6oe"er* the chief rea#on# for dela0# can 'e enumerated a# follo#$ /. !he first and the biggest problem is of the delay in disposition of cases. "ue to huge pendency, the cases take years for its final disposal, which would n ormally take few months time. !he arrears cause delay and delay means negating the accessibility of justice in true terms to the common man.
3. !he judge D population ratio D presently taking into consideration the population of the country and pendency of the cases the no. of judges available are very less. 5. !he infrastructure of the lower courts is very disappointing. !hough, the u preme 'ourt and High 'ourts are having good infrastructure but this in not the same position with lower courts. !he 'ourts have no convenient building b uilding or physical facilities due to which it takes more time to dispose off a case. Eood library, re(uisite furniture, sufficient staff and reasonable space are the need of the (ualitative justice and most of these facilities are not available in lower courts.
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1. "ue to the Independence Independen ce of udiciary, some udges think that they are not accountable to any one due to which man y a times this factor could drive judges toward co mfort, ignorance etc. ultimately results in delay of the cases. =. $rovision for adjournment) !he main reason for the delay in the cases is the adjournment granted by the court on unreasonable grounds. >. Jacation Jacation of the court) !he reason with providing co urts with a vacation period also leads to further delay of the cases especially in countr y such as India where there are tremendous amount of pending cases. In most of the countries like #.. and
years had passed for that incident and still people suffered a lot to get the compensation and no action still has not been taken against ag ainst the main victim of the incidence. 8ne of the recent example of the "elay would be the Fabri asjid case. 8f the five title suits filed in the -y -yodhya matter K the first was filed sixty years ago by Eopal ingh Jisharad, Jisharad, seeking permission p ermission for $ooja at the disputed site. - "ivision Fench of 5 udges of the -llahabad High 'ourt will pronounce this verdict on 31th eptember, 3C/C. 7ela0 Lead# To 8ental &n5ui#h$ &n5ui#h$ In Hussainara Ghatoon v. tate of Fihar which formed the basis of the concept of the peedy !rial, it was held that where under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified unjustified and in violation to fundamental rights under article. Inordinate delays violates article 3/ of the constitution) for more than // years the trial is pending without any progress for no faults of the accused6 petitioner. %xpeditious rights is a basic right to everybody and cannot be trampled upon unless any of the parties can be accused of the delay. "elay in trial unnecessarily confers a right upon the accused to apply for bail. ba il. #nder sec. 1A3 read with 1A5, 1 A5, 'r. $.' $.' lays lays that every possible measure to be taken to dispose off the case within >months from today. Lo adjournments to be granted until and unless circumstances are beyond the control of judiciary. It is the responsibility of the judiciary to keep a check on under trial prisoners and bring them to trial. 8vercrowded courts, inade(uate resources, fiscal deficiency cannot be the reasons for deprivation of a person. &rticle 21 Of The Con#titution$ !his right is implicit in article /1, /B7/* 7a* and 3/ of the constitution as well as the '$'. It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. upreme 'ourt being majestic authority has to act as guardian of of
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fundamental rights of citizens Pur!o#e of Criminal Ju#tice$ !he main purpose of speedy trial is to safeguard the innocent from undue pu nishments but due to huge amount of cases pending in the courts cases are delayed unintentionally which creates mental and economic pressure on litigants
:ue75ion7 of L!3 !nd F!c5 In jurisprudence, a (uestion of law 7also known as a point of law* is a (uestion which must be answered by applying relevant legal principles, p rinciples, by an interpretation of the law.M/N uch a (uestion is distinct from a (uestion of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts. -nswers to (uestions of law are generally expressed in terms of broad legal principles, and a re capable of being applied app lied to many situations, rather than being dependent on particular circumstances or factual situations. -n answer to a (uestion of law as applied to the particular facts of a case is often referred to as a conclusion of law. !o illustrate the difference) Ouestion of fact) "id r. and rs. Eupta leave their /C6year6old child home alone with their baby for 1 daysP Ouestion of law) "oes leaving a baby bab y with a /C6year6old child for 1 days fit the legal definition of child neglectP hile (uestions of fact are resolved by a trier of fact, which in the common law system is often a jury, (uestions of law are always resolved by a judge, or an e(uivalent. hereas findings of fact in a common law legal system will rarely be overturned by an appellate court, cou rt, conclusions of law will be more readily reconsidered. In law, a (uestion of fact, also known as a point of fact, is a (uestion which must be answered by reference to facts and evidence, and inferences arising from those facts. uch a (uestion is distinct from a (uestion of law, which must be answered by applying relevant legal p rinciples. !he answer to a (uestion of fact 7a finding of fact* is usually dependent on particular circumstances or factual situations. !o illustrate the difference) Ouestion of fact) "id r. and rs. ones leave their /C6year6old child home alone with their baby for 1 daysP
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Ouestion of law) "oes leaving a baby bab y with a /C6year6old child for 1 days fit the legal definition of child neglectP -fter hearing evidence, a #.. court may issue a
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Conc"u7ion !he entire procedure specified in the 'ode of criminal procedure, /B@5 is based on principle of justice and fairness. 8ne of the fundamental principles of legal jurisprudence jurisprudence is that a person accused of any offence should be given e(ual chance to be heard and to defend himself. udicial review of administrative action is based upon the d istinction between law and fact. Ouestions of law are to be decided de cided judicially, for the judge, both by training and tradition, is best e(uipped to deal with them. 8ur desire to have courts determine (uestions of law is related to a belief in their possession of expertness with regard to such (uestions. !hese considerations do not a pply with e(ual force to the judicial review of the factual issues arising out of administrative determinations. !here, the advantages of expertise are with the a dministrator. dministrator. !he fact findings of an expert commission co mmission have a validity to which no judicial examination can pretend9 the decision, for instance, of the Lew Qork Qork $ublic ervice 'ommission 'ommission that a gas company ought to provide gas service for a given district is almost inevitably more right than a decision pronounced by the 'ourts in a similar case. - theory of review based upon the law6fact distinction assumes that there is a more or less clear6cut division between law and fact, with the former for the judge and the latter for the administrator. !his separation of law and fact sounds attractively simple. !he administrative tribunal would find the facts and the courts would not interfere unless the absence of eviden ce or the perversity of the finding re(uired them to intervene. In fact, however, the distinction between law and fact is not nearly so well6defined as is often supposed. !he judges, who have the last word, can confidently draw the line between law and fact9 for the rest of us it is not so easy. !here is a certain ambiguity about the terms in practice which makes it difficult in many cases confidently to ascertain which is which prior to court decision. hether or not a man was walking wa lking along the sidewalk on a certain street of a certain afternoon is a (uestion of fact. hether a coal hole on the sidewalk was or was not covered is a (uestion of fact. hether or not the man fell into the coal c oal hole is (uestion of fact. In each case, the fact is ascertainable by observation9 there can be no (uestion of judgment or opinion. -s a matter of law, however, the liability of the person or corporation chargeable with the condition of the coal hole may depend upon whether or not it was reasonably guarded. !his will depend upon two (uestions. It will depend upon the physical character, location, and surroundings of the hole, and
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it will depend upon whether those physical factors conform to the standard of reasonableness which the law demands. !he former is a (uestion ( uestion of fact, but what is the latterP In such cases, law and fact fact are not two mutually exclusive kinds of ( uestions, so that the scope of review becomes a mere mechanical matter, depending upon the category in which the finding at issue falls.
;i6"io4r!
Gelkar, 2.J. 2.J., 'riminal $rocedure 'ode, =th edition %astern Fook 'ompany, 0ucknow, , 73CCA*
isra, .L., !he 'ode of 'riminal $rocedure, /B@5 with $robation of 8ffenders -ct & uvenile ustice -ct, /@th ed, 'entral 0aw $ublications 73C//*
2atanlal & "hirajlal, 'ode of 'riminal $rocedure, /@th edition, 0exis Lexis Futterworths adhwa, adhwa, Lagpur Lagpu r 73CC1*
73CC@*
arkar;s, !he 'ode of 'riminal $rocedure, "wivedi 0aw -gency -llahabad, 2eprint
