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یم ح ر ل ا

من ح ر ل ا

هللا

سم  ب

یم ر ل ا

ہ ل و س ر

عل

صل ن

و

ه د م ح ن  

LAW OF REFERENCE AND

REVISION

Ch: XXXII (Ss. 432-444)

Code of Criminal Procedure, 1898

[Justice ® Dr. Munir Ahmad Mughal]

http://ssrn.com/author=1697634 

Introduction

Part VII of the Code of CriminalProcedure, 1898 contains two chapters.

One chapter (ch.31) deals with the

appeals and the other chapter (ch.32)

deals with Reference and Revision. Six

sections of Ch. 32 (i.e. Sections 432 and433 were on Reference; section 434 was

on Power to reserve questions; section

437 was on commitment, section 438

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was on report to High Court and section

441 was on statements of Presidency

Magistrates) stand omitted. And onesection 439-A added by Law Reforms

Ordinance, 1972.

 Now sections 435, 436, 439, 439-A, 440,

441 and 442 are in force which deal with

the following matters respectively: Power to call for records of inferior

Court.

 High Court’s powers of revision.

 Session Judge’s powers of revision.

 Optional with Court to hear parties. High Court’s order to be certified to

the lower Court or Magistrate.

The article will discuss all these

matters in the light of the judicial

 precedent on the subject.

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What is reference?

At present reference is relevant with

regard to section 374 Cr. P. C. accordingto which when the Court of Session

 passes sentence of death, the proceedings

shall be submitted to the High Court and

the sentence shall not be executed unless

it is confirmed by the High Court.

What is an appeal?

The word appeal means to remove a

cause formally from an inferior Court toa higher Court with a view to ascertain

whether the judgment is sustainable

having been passed by a Court of

competent jurisdiction, sentence being

awarded according to law and proceedings conducted conforming the

 provision so provided. The right of

appeal is a matter of procedure. It is

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When Revisional jurisdiction is tobe normally exercised?

The jurisdiction normally is to be

exercised in exceptional cases to cover

glaring defect in procedure or material

error on point of law resulting

miscarriage of justice.8

In Mushtaq Ahmad’ case it was held by

the Honourable Supreme Court that the

High Court has the power to interfere

upon information in whatever wayreceived. High Court has also right to

exercise its own initiative and there can

 be no warrant for the proposition that the

High Court is debarred from examining

the record suo moto

.

9

8 1991 Criminal Law Journal 1195 (Patna).9 PLD 1966 SC 126 [Mushtaq Ahmad v. State].

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Who can file a revision?

It is not necessary that only an aggrieved person can invoke the Revisional

 jurisdiction of the High Court. Any

 person can move the High Court under

section 435, 436 and 439 Cr. P. C. on its

Revisional side.10

 The Revisional jurisdiction can be

exercised by the High Court by

  being moved by convicted personhimself; or

  by any other person; or  suo moto on the basis of its own

knowledge derived from any source

whatsoever.11

Distinction between Reference and

Revision

10 PLD 1996 Karachi 306.11 AIR 1971 SC 1925; AIR 1962 SC 1530

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 Reference is made when a questionarises in a pending case as to the

validity of any Act, Ordinance orRegulation and determination of such

question is necessary for the just

decision of the case. The Presidency

Magistrate only had a power to refer

a case involving a question of law.Since long the provisions of law

relating to the Presidency Magistrates

have been omitted and now it is only

an academic subject to understand the

difference between reference andrevision. Revision lies on a point of

law only.

 Reference lies to the High Court onlywhile Revision lies to other Courts

also. Reference lie in pending cases only.

Revision may lie in both pending and

decided cases.

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 There is only one stage in referencewhile there are two stages in revision,

i.e. the first stage is of preliminaryexamination and the second stage is

reversal or alteration of sentence or

order.

Power of High Court in Revisionand Writ jurisdiction, distinction.

Powers of revision under this section aremuch wider in scope than the powers of

the High Court in writ petition. Whereas

in writ petition the High Court ca only

consider the question of jurisdiction or

legality a Revisional Court exercising power under this section can not only

consider the legality but also correctness

and even the propriety of any finding,

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sentence or order recorded or passed by

and the regularity of any proceedings of

any inferior Court. In other words it cannot only go into the evidence and reverse

the finding of fact, but can even consider

the propriety of an order or the propriety

of adopting any particular procedure.12

Briefly stated points of distinction between an Appellate jurisdiction and

Revisional jurisdiction of a High Court

are as under:

(i)  An appeal is a statutory right

given to the appellant which hecan demand from the Court either

on a question of fact or on a

question of law or upon both. In

revision the applicant has no

statutory right beyond inviting the

attention of the Court. The Court

12 PLD 1981 SC 522.

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has a discretion to exercise its

Revisional power or not.

(ii)  In appeal the High Court decides both on questions of law and fact.

In revision it only decides or

adjudicates on a question of law,

 but it may, for the ends of justice,

enter into questions of fact.(iii)  In appeal the High Court cannotenhance the sentence, but in

revision it can.

(iv)  In appeal the High Court can

convert an acquittal intoconviction and vice versa, but in

revision it cannot convert a

finding of acquittal in to one of

conviction.

(v)  The power of High Court inappeal is not as wide as that in

revision. In exercising its

Revisional jurisdiction the High

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Court may even cure any

irregularity or illegality but that is

not so in appeal.(vi)  In disposing of a criminal appeal

the Court will interfere unless it is

satisfied as to the guilt of the

accused, while on revision the

High Court will not interfereunless the conscience of the Court

is aroused to such an extent as to

compel it to say expressly that the

applicant ought not to have been

convicted on the evidence.(vii) The High Court cannot dismiss anappeal without affording the

appellant or his pleader a

reasonable opportunity of being

heard. But in revision the High

Court is not bound to hear the

applicant or his pleader save

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while enhancing any sentence the

accused shall be heard as of right.

(viii) In appeal the High Court cannotdirect the tender of pardon, but it

can d so in the exercise of its

Revisional jurisdiction.

What is the intention of law to

confer suo moto power of revisionon High Court ?

Intention of law to confer suo moto 

 power of revision on h c is to ensure that

the Court subordinate to it should artstrictly within legal bounds and should

not transgress their jurisdiction and that

findings , sentences or orders recorded or

 passed by them are just and legal.13

13 2000 SCMR 735.

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Federal Shariat Court

Article203-DD of the Constitution

simply empowers the Federal ShariatCourt to call for record of any case

relating to the enforcement of Hudood

offences and examine correctness,

legality or propriety of the proceedings.

It does not lay down the procedure, forwhich purpose reference is to be made to

section 439 Cr. P. C. The Federal Shariat

Court is also empowered to call for any

record suo moto without any application

from any party or State, for the purposesof satisfying itself as to the correctness,

legality or propriety of any finding,

sentence or order recorded by a

subordinate Court.14

14 PLD 1986 FSC 282.

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What are the exact words of lawlegislated in sections 435, 436, 439,

439-A, 440, and 442 Cr. P. C.?The text of the law on the whole subject

of revision is as under:

“435. Power to call for records of

inferior Courts.

(1) The High Court or any Sessions

Judge may call for and examine the

record of any proceeding before any

inferior Criminal Court situate within thelocal limits of its or his jurisdiction for

the purpose of satisfying itself or himself

as to the correctness, legality or

 propriety of any finding, sentence or

order recorded or passed, and as to theregularity of any proceedings of such

inferior Court and may, when calling for

such record, direct that the execution of

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any sentence be suspended and, if the

accused is in confinement, that he be

released on bail or on his own bond pending the examination of the record.

Explanation. All magistrates shall be

deemed to be inferior to the Sessions

Judge for the purposes of this sub-section.

436. Power to order further inquiry.

On examining any record under section

435 or otherwise:-

(a) the High Court may direct theSessions Judge to require any Magistrate

subordinate to him to make, and the

Sessions Judge himself may direct any

Magistrate subordinate to him to make,

further inquiry into any complaint whichhas been dismissed under section 203 or

subsection (3) of section 204, or into the

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case of any person accused of an offence

who has been discharged.

(b) the High Court or the Sessions Judgemay direct any Magistrate to make

further inquiry in to any proceeding in

which a order of discharge or release has

 been made under section 119;

Provided that no Court or the SessionsJudge shall make any direction under this

section for enquiry into the case of a

 person who has been released or

discharged under section 119, unless

such person has had an opportunity ofshowing cause why such direction

should not be made.

439. High Court’s powers of revision.

(1) In the case of any proceeding the

record of which has been called for by

itself or which otherwise comes to its

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knowledge, the High Court may, in its

discretion, exercise any of the powers

conferred on a Court of Appeal bysections 423, 426, 427 and 428 or on a

Court by section 338, and may enhance

the sentence and, when the Judges

composing the Court of revision are

equally divided in opinion, the case shall be disposed of in manner provided by

section 429.

(2) No order under this section shall be

made to the prejudice of the accused

unless he has had an opportunity of being heard either personally or by

 pleader in his own defence.

(3) Where the sentence dealt with under

this section has been passed by a

Magistrate, the Court shall not inflict a

greater punishment for the offence which,

in the opinion of such Court, the accused

has committed, than might have been

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inflicted for such offence by a Magistrate

of the first class.

(4) Nothing in this section shall bedeemed to authorise a High Court:

(a) to convert a finding of acquittal

intone of conviction; or

(b) to entertain any proceedings in

revision with respect to an order made bythe Sessions Judge under section 439-A.

(5) Where under this Code an appeal lies

and no appeal is brought, no proceedings

 by way of revision shall be entertained at

the instance of party who could haveappealed.

(6) Notwithstanding anything contained

in this section, any convicted person to

whom an opportunity has been given

under sub-section (2) for showing cause,

why his sentence should not be enhanced

shall, in showing cause, be entitled to

show cause against his conviction.

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439-A. Sessions Judge’s power of

revision.

(1) In the case of any proceedings before

a Magistrate the record of which has

 been called for by the Sessions Judge or

which otherwise comes to his knowledge,the Sessions Judge may exercise any of

the powers conferred on the High Court

 by section 439.

(2) An additional Sessions Judge shall

have and may exercise all the powers ofa Sessions Judge under this Chapter in

respect of any case which may be

transferred to him under any general or

special order of the Sessions Judge.

440. Optional with Court to hearparties.

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 No party has any right to be heard either

 personally or by pleader before any

Court when exercising its powers ofrevision:

Provided that the Court may, if it thinks

fit, when exercising such powers hear

any party either personally or by pleader,

and that nothing in this section shall bedeemed to affect section 439, subsection

(2).

442. High Court’s order to be

certified to the lower Court orMagistrate.

When a case is revised under this

Chapter by the High Court ,it shall, in

manner hereinbefore provided by section425, certify its decision or order to the

Court by which the finding, sentence or

order revised was recorded or passed,

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and the Court or Magistrate to which the

decision or order is so certified shall

thereupon make such orders as areconformable to the decision so certified;

and, if necessary the record shall be

amended in accordance therewith.”

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Table of Contents of this Article 

Introduction.................................................................................................................1What is reference? .......................................................................................................3

What is an appeal?.......................................................................................................3

What is a revision? ......................................................................................................5When interference by way of revision is justified?.......................................................6When Revisional jurisdiction is to be normally exercised?...........................................7

Who can file a revision? ..............................................................................................8Distinction between Reference and Revision ...............................................................8

Power of High Court in Revision and Writ jurisdiction, distinction............................10What is the intention of law to confer suo moto power of revision on High Court ? ...14

Federal Shariat Court.................................................................................................15What are the exact words of law legislated in sections 435, 436, 439, 439-A, 440, and

442 Cr. P. C.?............................................................................................................16“435. Power to call for records of inferior Courts.......................................................16

436. Power to order further inquiry. ...........................................................................17439. High Court’s powers of revision. .......................................................................18439-A. Sessions Judge’s power of revision. ...............................................................21

440. Optional with Court to hear parties. ...................................................................21442. High Court’s order to be certified to the lower Court or Magistrate. ................... 22

Table of Contents of this Article ................................................................................24