Reference to the High Court Under the BNSS (Section 436): CrPC 395 Mapping (2026)
What a reference to the High Court means on a question of law, which section of the BNSS now governs it, how it maps to Section 395 of the old CrPC, and why it is not the same as the revision power often searched as "BNSS 438". Last verified October 2026.
Explainer · Criminal Procedure · BNSS
Sometimes a trial court is faced with a hard question about the validity of a law, and it would be wrong for it to decide the whole case before that question is settled. In that situation the court can send the question up to the High Court. This is called a reference. Under the new law it is governed by Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 395 of the old Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. It carries no punishment, because a reference is a procedural step, not an offence. Last verified October 2026.
- What it is: a lower criminal court referring a question of law, usually about the validity of a statute, to the High Court for decision.
- New section: Section 436 of the BNSS, 2023.
- Old section: it replaced Section 395 of the CrPC, 1973.
- Not "BNSS 438": BNSS 438 is the power to call for records for revision (old CrPC 397), a different provision.
- No punishment: a reference is a procedural power, not an offence.
- Search and track: Claw searches 30 crore+ judgments and tracks matters across 9,102 courts, benches and forums.
01Why a reference exists
A reference lets a subordinate court pause and ask the High Court to decide a question of law before the case goes further. The most important use is where the case turns on whether an Act, Ordinance, or Regulation, or any provision in one, is valid.
The reason is simple. A Magistrate or a Sessions Court cannot, on its own, strike down a law as invalid. If the court is of the view that such a law is invalid or inoperative, but that view has not already been settled by the High Court or the Supreme Court, the right course is to state the case and refer the point upward. The High Court then decides the question, and the trial continues in line with that decision.
This keeps the law uniform. It stops different trial courts from reaching opposite views on the same statute, and it makes sure a serious question about the validity of a law is answered by a higher court.
02What the reference power covers
A reference under the BNSS lets a Court of Session or a Metropolitan Magistrate, and in the stated situations any other court, refer a question of law to the High Court. The court draws up a statement of the case, gives its own opinion on the point, and sends it to the High Court for decision.
Two features matter in practice:
- The core ground is the validity of a law. Where the case involves a question as to the validity of an Act, Ordinance, or Regulation, and the court thinks it is invalid but no higher court has yet said so, a reference is the proper route.
- The case waits, but the accused is protected. The court making the reference may either commit the accused to custody or release the accused on bail until the High Court answers the question. The trial does not simply collapse while the reference is pending.
When the High Court has decided the question, the court below must dispose of the case in line with that decision. The follow-on provision for that step sits in the same chapter of the BNSS.
A procedure provision, not an offence
A reference creates no crime and has no punishment. The words cognizable, bailable, and triable by do not apply to it. Any punishment in the case comes from the offence being tried, not from the reference.
03Section 395 CrPC to the BNSS
Reference to the High Court, which was Section 395 of the CrPC, is now Section 436 of the BNSS. The connected provision, which told the court to dispose of the case according to the decision of the High Court (old Section 396), follows it in the same chapter as Section 437. The scheme is carried over with no change in substance, only a change in numbering.
| Old law (CrPC, 1973) | New law (BNSS, 2023) | Subject |
|---|---|---|
| Section 395 | Section 436 | Reference to the High Court on a question of law |
| Section 396 | Section 437 | Disposal of the case according to the High Court decision |
| Section 397 | Section 438 | Calling for records to exercise powers of revision |
| Section 401 | Section 442 | High Court powers of revision |
So if you are searching for "section 395 crpc in bnss", the answer is Section 436, and the reference power reads substantially as it did before.
04A warning on the number 438
Do not confuse the reference power with Section 438 of the BNSS. In the BNSS, Section 438 is not about reference at all. It is the power to call for records to exercise powers of revision, which was Section 397 of the old CrPC.
This matters because the numbering around reference and revision shifted when the CrPC became the BNSS, and some quick guides online get it wrong. Here is the clean position:
- Reference to the High Court: BNSS 436 (old CrPC 395).
- Calling for records for revision: BNSS 438 (old CrPC 397).
- High Court power of revision: BNSS 442 (old CrPC 401). See criminal revision under the BNSS.
Another common mix-up is with anticipatory bail, which was Section 438 of the CrPC and is now Section 482 of the BNSS. Always confirm the section before you draft. For the full table, see the CrPC to BNSS section mapping.
05Reference, revision and appeal
These three powers are often confused, but they do different jobs.
- A reference is a lower court asking the High Court to decide a question of law, usually about the validity of a statute, before the case is decided.
- A revision is a higher court checking, on its own or on a party moving it, that a lower court order is legal, regular, and proper.
- An appeal is a rehearing on facts and law, available only where the law grants it. See criminal appeals under the BNSS.
In short, a reference goes up before the decision, a revision and an appeal come after an order. For the wider picture of what changed when the CrPC became the BNSS, see the key changes from the CrPC to the BNSS.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
A reference turns on how the High Court and the Supreme Court have already read the statute whose validity is in doubt, so the first task is to find those authorities and the second is to keep the matter in view while it waits for the answer. Claw serves both. You can search more than 30 crore judgments by section, party or advocate and get results in under five seconds, seeing how a provision has been tested, including under the old Section 395, with Supreme Court coverage from 1950 and High Courts from 1990. You can then follow the cases, orders and hearings across 9,102 courts, benches and forums, so the listing once the reference is answered stays on your radar. See case search across Indian courts.
Sign up for a free Claw account to research validity challenges and track a pending reference. Claw does not use customer case documents to train its AI models. It is a research and tracking tool; it does not draft or file the reference and does not replace legal advice.
07Sources and further reading
- India Code (official text of the BNSS, 2023): indiacode.nic.in
- Ministry of Home Affairs (the new criminal laws): mha.gov.in
- Supreme Court of India (judgments): sci.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The new criminal laws are still being read and applied by the courts, so check the current text of Section 436 and take advice from counsel before you rely on a provision.
08Frequently asked questions
What is a reference to the High Court in a criminal case?
It is where a subordinate criminal court, faced with a question about the validity of a law, states the case and refers the question to the High Court for its decision. The trial waits for the answer, and then the court below disposes of the case in line with it.
Which section of the BNSS governs a reference to the High Court?
Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It replaced Section 395 of the old Code of Criminal Procedure, 1973. The disposal of the case according to the High Court decision follows in Section 437.
Is a reference the same as Section 438 of the BNSS?
No. Section 438 of the BNSS is the power to call for records to exercise powers of revision, which was Section 397 of the CrPC. A reference is a separate power in Section 436. The numbering is close, so confirm the section before you draft.
What is the difference between a reference and a revision?
A reference is a lower court sending a question of law up to the High Court before the case is decided. A revision is a higher court checking that an order already made by a lower court is legal, regular, and proper. They happen at different stages.
Is there a punishment under this section?
No. A reference is a procedural power, not an offence, so it carries no punishment, and the terms cognizable or bailable do not apply to it. Any punishment in the case comes from the offence being tried.
How can I find judgments on a question referred to the High Court?
Claw lets you search more than 30 crore judgments by section, party or advocate in under five seconds, with Supreme Court rulings from 1950 and High Court rulings from 1990, and it follows live cases, orders and hearings across 9,102 courts, benches and forums. A free account lets you search and track by party or advocate name.