Answer By law4u team
Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 436: 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, or in the General Clauses Act of a State.
(2) A Court of Session 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.
Brefe Detail
Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023, provides a framework for lower courts to refer questions regarding the validity of laws to the High Court. If a court believes that a law is invalid but has not been declared so by a higher court, it can refer the case to the High Court for a determination. This section also allows for a Court of Session to refer legal questions, pending the High Court's decision. The High Court will issue an order, which the referring court must follow in resolving the case.
Question & Answers
Q1: What must a court do if it believes a law is invalid?
A1: The court must state a case with its opinion and reasons and refer it to the High Court for a decision.
Q2: Can a Court of Session refer questions to the High Court?
A2: Yes, a Court of Session may refer any question of law arising in a case before it if it thinks fit.
Q3: What can a court do while waiting for the High Court's decision on a reference?
A3: The court may either commit the accused to jail or release them on bail to appear when called upon.
Example
1. Example of Reference Due to Invalidity: If a lower court believes that a particular provision of a law is invalid, it can refer the question to the High Court for clarification.
2. Example of Court of Session Referral: A Court of Session may encounter a legal question regarding evidence admissibility that is not clear. It can choose to refer this question to the High Court for a ruling.
3. Example of Accused's Status Pending Decision: If a court refers a case and the accused is in custody, the court can decide to release the accused on bail until the High Court makes a decision.
Summary
Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023, establishes the process for lower courts to seek the High Court's clarification on the validity of laws when necessary for case disposal. This section ensures that courts can maintain judicial integrity while allowing for the resolution of complex legal questions through higher authority.
