Section 436 BNSS: Reference to High Court

Text of Section 436 BNSS

Meaning and scope of Section 436

Section 436 creates two distinct routes for a reference to the High Court. The first route, under sub-section (1), applies when the validity or operability of legislation is directly in issue and the referring court considers the provision invalid or inoperative. The second route, under sub-section (2), is narrower as to the referring court: it permits a Court of Session to refer another question of law arising during the hearing of a pending case.

1. Mandatory reference under Section 436(1)

A reference under sub-section (1) becomes obligatory where the statutory conditions are satisfied. In practical terms, the following requirements must coexist:

1. A case must be pending before the referring court.
2. The case must involve a question about the validity of an Act, Ordinance, Regulation, or a provision contained in one of them.
3. Determination of that question must be necessary for disposal of the pending case.
4. The referring court must form the opinion that the impugned law or provision is invalid or inoperative.
5. The law or provision must not already have been declared invalid or inoperative by the jurisdictional High Court or by the Supreme Court.
6. The court must state a case, record its opinion and reasons, and refer the matter to the High Court.

2. Discretionary reference by a Court of Session under Section 436(2)

Where sub-section (1) does not apply, a Court of Session may refer to the High Court a question of law arising in the hearing of a pending case. The word "may" makes this a discretionary reference. The provision does not confer the same power under sub-section (2) on every criminal court.

3. Custody or bail while reference is pending

Under Section 436(3), the referring court may, while awaiting the High Court's decision, either commit the accused to jail or release the accused on bail to appear when called upon. The provision therefore preserves the referring court's control over the accused during the pendency of the reference.

Section 436 BNSS and former Section 395 CrPC

The deletion of the reference to a Metropolitan Magistrate in sub-section (2) is a material textual change. For legacy proceedings, however, the applicable procedural code must be checked in light of Section 531 BNSS, which preserves the CrPC framework for specified proceedings already pending immediately before 1 July 2024.

Practical procedure for a reference

1. The court identifies the statutory question arising in a case pending before it.
2. If Section 436(1) is invoked, the court must form and record the required opinion regarding invalidity or inoperability and explain why determination is necessary for disposal of the case.
3. If Section 436(2) is invoked, the referring court must be a Court of Session and the issue must be a question of law arising in the hearing.
4. The court states the case and sends the reference to the competent High Court.
5. Pending decision, the court deals with the accused under Section 436(3).
6. After the High Court decides the reference, Section 437 requires the referring court to dispose of the case in conformity with the High Court's order.

Related BNSS provisions

Section 436 opens Chapter XXXII of the BNSS. It should be read with Section 437 - Disposal of case according to decision of High Court and the succeeding revision provisions beginning with Section 438 - Calling for records to exercise powers of revision.

Official legal sources

• India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 (official text)
• Ministry of Home Affairs - commencement notification S.O. 848(E), dated 23 February 2024
• Delhi High Court - Court on its Own Motion v. State Govt. of NCT of Delhi, CRL.REF. 13/2025

Frequently asked questions