What Is BNSS Section 438?

Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 438: Calling for records to exercise powers of revision

(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 its or his local 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 the regularity of any proceedings of such inferior Court. The court may, when calling for such record, direct that the execution of any sentence or order 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, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 439.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Brefe Detail

Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023, outlines the authority of the High Court and Sessions Judge to call for records from inferior Criminal Courts. This section aims to ensure the correctness and legality of findings, sentences, or orders made by these courts. It provides for the suspension of sentences during the examination of records and limits the powers of revision concerning interlocutory orders. Additionally, it establishes that once an application is made to either the High Court or the Sessions Judge, the other court will not entertain further applications from the same individual.

Question & Answers

Q1: What powers do the High Court and Sessions Judge have under Section 438?

A1: They can call for and examine records of proceedings from inferior Criminal Courts to ensure correctness, legality, or propriety of findings, sentences, or orders.

Q2: Can the High Court suspend a sentence while examining records?

A2: Yes, the High Court may direct that the execution of any sentence or order be suspended pending examination of the record.

Q3: Are Magistrates considered inferior to the Sessions Judge for the purposes of this section?

A3: Yes, all Magistrates are deemed inferior to the Sessions Judge as per this section.

Q4: Can an interlocutory order be revised under this section?

A4: No, the powers of revision under this section cannot be exercised concerning interlocutory orders.

Q5: What happens if a person makes an application to the High Court or Sessions Judge?

A5: If an application has been made to one, no further application by the same person will be entertained by the other.

Example

1. Example of Calling for Records: If a Sessions Judge suspects that a sentence passed by a lower court is unjust, he may call for the case records to review the decision.

2. Example of Suspension of Sentence: If an accused person is serving a sentence and the High Court finds potential irregularities in the case, it can suspend the sentence pending further review.

3. Example of Interlocutory Order: If a lower court issues a temporary order during a trial, this order cannot be challenged under Section 438 as it is considered an interlocutory order.

Summary

Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023, grants the High Court and Sessions Judge the authority to call for records from inferior Criminal Courts to ensure legal correctness. It outlines the procedure for reviewing findings, sentences, or orders and emphasizes the inability to revise interlocutory orders, thus maintaining a structured approach to legal oversight.