Court On Its Own Motion vs State

Siddharth Mridul, J

In order to effectively adjudicate the purely academic and in our view, the premature and inchoate issue raised in the present reference, it would be

profitable to extract in extenso the provisions of Section 395 of the Code of Criminal Procedure, 1973.

“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.â€​

A plain reading of the mandate of the above extracted provision, makes it clear that, the sine qua non for its invocation, is the requirement of the

recording of satisfaction of the concerned Court, that in a case pending adjudication before it, questions as to the validity of an 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 that case,

arise for consideration.

The second requirement of the instant provision stipulates that, if the subordinate Court is of the 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 such Court is subordinate or by the Hon’ble Supreme

Court, that Subordinate Court shall state a case setting out such an opinion and the reasons therefor, and refer the same, for the decision of the

concerned High Court.

In the present reference, we observe that the same is inchoate and pre-mature, inasmuch as, there is no articulation of the facts and circumstances

- attendant and antecedent - of the case, out of which the present reference arises. In this behalf it is pertinent to observe that the determination of a

question involved in a given case, as to the validity and operability of a provision contained in an Act, Ordinance or Regulation, can only arise from the

facts and circumstances of such a case. In this regard, it is also observed that, the subject case was at the stage of hearing arguments on charge,

when the present reference was made.

We are, therefore, of the considered view that, it was not competent for the Magistrate, at the stage of hearing arguments on charge, to project and

speculate in relation to the questions that could arise for consideration, involving the determination of the validity of a provision of any Act, Ordinance

or Regulation, i.e. Section 29 vis-Ã - vis statutory powers of a Court; so as to warrant a reference of the same for the decision of the High Court.

Even otherwise, the Code of Criminal Procedure, 1973; and in particular the provisions of Sections 325 and 323 statutorily and appropriately address

the academic issue that is sought to be raised in the present reference.

Before we part with the order, it is incumbent upon us to observe that, the factual matrix of the relevant case, that is pending adjudication before the

Magistrate concerned; as well as the legal context in which the present reference has been made, is conspicuous by its absence.

We are therefore, of the considered view that the present reference is inchoate and premature and resultantly does not warrant a decision qua the

validity or operability of any provision of law, at this stage. The same is answered accordingly.