Section 438 – Calling for Records to Exercise Powers of Revision

Introduction

Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the calling for records to exercise powers of revision.

The provision gives the High Court or a Sessions Judge the power to call for and examine the records of proceedings before an inferior Criminal Court within their local jurisdiction.

The purpose is to examine whether the finding, sentence, or order passed by the subordinate court is correct, legal and proper, and whether the proceedings were conducted regularly.

Section 438 also permits the High Court or Sessions Judge, while calling for the record, to suspend the execution of a sentence or order and release an accused who is in custody on their own bond or bail bond.

Meaning of Section 438

Section 438 provides the basic mechanism for exercising revisional jurisdiction.

Revision is different from an appeal. In revision, the superior court examines the record of proceedings of an inferior Criminal Court to determine whether there has been an error relating to:

• correctness;
• legality;
• propriety; or
• regularity of proceedings.

The power is vested in:

• the High Court; and
• the Sessions Judge.

Object and Purpose

The main purpose of Section 438 is to provide supervisory judicial control over subordinate Criminal Courts.

The provision seeks to ensure that criminal proceedings are conducted according to law and that findings, sentences and orders passed by subordinate courts are not affected by serious legal or procedural errors.

It helps maintain:

• legality in criminal proceedings;
• correctness of judicial decisions;
• propriety of findings and orders;
• procedural regularity; and
• proper supervision over subordinate Criminal Courts.

Who Can Exercise Powers Under Section 438?

Section 438 specifically gives the power to:

1. High Court

The High Court may call for and examine the record of proceedings before an inferior Criminal Court situated within its local jurisdiction.

2. Sessions Judge

A Sessions Judge may also call for and examine the record of proceedings before an inferior Criminal Court within the Sessions Judge’s local jurisdiction.

The provision therefore recognises revisional jurisdiction at two levels.

What Can Be Examined?

The High Court or Sessions Judge may examine the record for the purpose of satisfying itself or himself regarding:

Correctness

Whether the finding, sentence or order is factually and legally correct.

Legality

Whether the finding, sentence or order has been made in accordance with law.

Propriety

Whether the finding, sentence or order is proper and appropriate in the circumstances of the case.

Regularity of Proceedings

Whether the subordinate Criminal Court followed the proper legal procedure while conducting the proceedings.

These four considerations form the core of the revisional power under Section 438.

Calling for the Record

The High Court or Sessions Judge may call for the record of any proceeding before an inferior Criminal Court.

The purpose of calling for the record is not merely administrative. The record is examined to determine whether the subordinate court’s decision or proceedings suffer from a defect relating to correctness, legality, propriety or regularity.

The power is therefore supervisory and judicial in character.

Power to Suspend Sentence or Order

An important feature of Section 438 is that, when calling for the record, the High Court or Sessions Judge may direct that the execution of any sentence or order be suspended.

This allows the superior court to temporarily prevent the operation of the challenged sentence or order while the record is being examined.

However, suspension is not automatic. The provision gives the court discretion to grant such relief.

Release of Accused on Bond or Bail Bond

Where the accused is in confinement, the High Court or Sessions Judge may direct that the accused be released:

• on the accused’s own bond; or
• on bail bond.

This release may be ordered pending examination of the record.

Therefore, Section 438 provides an interim mechanism for protecting the liberty of an accused while the revisional court examines the subordinate court proceedings.

Explanation Regarding Magistrates

The Explanation to Section 438 provides that all Magistrates, whether:

• Executive or Judicial; and
• exercising original or appellate jurisdiction,

shall be deemed to be inferior to the Sessions Judge for the purposes of Section 438 and Section 439.

This clarification determines the relationship between Magistrates and the Sessions Judge for the exercise of revisional powers.

Limitation Regarding Interlocutory Orders

Section 438(2) places an important limitation on revisional jurisdiction.

The powers of revision under Section 438(1) shall not be exercised in relation to any interlocutory order passed in:

• an appeal;
• an inquiry;
• a trial; or
• any other proceeding.

The purpose of this restriction is to prevent revision from being used to challenge every temporary or intermediate order passed during criminal proceedings.

What Is an Interlocutory Order?

An interlocutory order is generally an order passed during the course of a proceeding that does not finally determine the rights or liabilities of the parties.

Section 438(2) prevents the revisional jurisdiction from being routinely invoked against such orders.

However, whether a particular order is interlocutory must be determined according to its legal nature and effect.

Bar on Approaching Both Courts

Section 438(3) provides an important restriction.

If a person has made an application under Section 438 either to:

• the High Court; or
• the Sessions Judge,

that same person cannot make a further application under the same section before the other court.

In simple terms:

A person cannot seek revision before both the High Court and the Sessions Judge one after another under Section 438.

This prevents parallel or successive revisional applications before both forums.

Procedure Under Section 438

The basic procedure can be understood as follows:

1. A proceeding takes place before an inferior Criminal Court.
2. A party seeks revisional examination of the proceeding or order.
3. The High Court or Sessions Judge may call for the relevant record.
4. The superior court examines the record.
5. It considers the correctness, legality or propriety of the finding, sentence or order.
6. It may also examine the regularity of the proceedings.
7. While calling for the record, it may suspend execution of the sentence or order.
8. If the accused is in confinement, the court may release the accused on their own bond or bail bond pending examination.
9. The revisional proceedings continue subject to the limitations contained in Section 438.

Revision vs Appeal

Section 438 must be understood in the context of the distinction between appeal and revision.

Appeal

An appeal is a statutory remedy that generally permits a higher court to examine the case within the scope of the appellate jurisdiction provided by law.

Revision

Revision is a supervisory jurisdiction intended to examine the correctness, legality, propriety and regularity of proceedings and orders of subordinate Criminal Courts.

A revision is therefore not simply another form of appeal.

Revision and Interlocutory Orders

One of the most important points to remember is that Section 438(2) excludes interlocutory orders from the revisional power under Section 438(1).

This restriction prevents criminal proceedings from being unnecessarily delayed by repeated challenges to interim orders.

Example

Suppose a Magistrate passes an order in a criminal proceeding and a party believes that the order suffers from a serious legal or procedural defect.

The party may seek revisional examination before the competent revisional court.

The High Court or Sessions Judge may call for the record and examine whether the order is correct, legal and proper and whether the proceedings have been conducted regularly.

If the accused is in custody, the revisional court may, while calling for the record, suspend execution of the sentence or order and release the accused on their own bond or bail bond pending examination of the record.

Another Example

Suppose a person files a revision application before the Sessions Judge challenging an order of an inferior Criminal Court.

The same person cannot subsequently file another application under Section 438 before the High Court merely to obtain a second revisional examination under the same provision.

Section 438(3) prevents such successive applications before both forums.

Important Safeguards

Section 438 contains several safeguards against misuse of revisional jurisdiction:

• the power is vested in superior courts;
• the record is examined for specified purposes;
• interlocutory orders are excluded;
• a person cannot approach both the Sessions Judge and High Court under the same provision.

These safeguards balance judicial supervision with the need to prevent unnecessary interference in criminal proceedings.

Nature of Revisional Power

The power under Section 438 is discretionary.

The High Court or Sessions Judge is not required to interfere in every case merely because a party challenges an order of a subordinate Criminal Court.

The court exercises revisional jurisdiction to ensure that proceedings and decisions comply with the requirements of law and proper judicial procedure.

BNSS and CrPC

Section 438 of the BNSS corresponds to Section 397 of the Code of Criminal Procedure, 1973 (CrPC).

The core revisional mechanism remains substantially similar.

Under both provisions:

• the High Court or Sessions Judge can call for records;
• the record may be examined for correctness, legality and propriety;
• regularity of proceedings may be examined;
• execution of a sentence or order may be suspended;
• an accused in confinement may be released on bond or bail bond;
• interlocutory orders are excluded from the revisional power; and
• the same person cannot pursue applications before both the High Court and Sessions Judge under the provision.

Important BNSS Provisions

• Section 436: Reference to High Court.
• Section 437: Disposal of case according to decision of High Court.
• Section 438: Calling for records to exercise powers of revision.
• Section 439: Power to order inquiry.
• Section 440: Sessions Judge’s powers of revision.
• Section 441: Power of Additional Sessions Judge.
• Section 442: High Court’s powers of revision.
• Section 443: Power of High Court to withdraw or transfer revision cases.
• Section 444: Option of Court to hear parties.
• Section 445: High Court’s order to be certified to lower Court.

Common Confusions

Is revision the same as an appeal?

No.

Revision is a supervisory jurisdiction and is distinct from the statutory right of appeal.

Can an interlocutory order be challenged under Section 438?

No.

Section 438(2) expressly prevents the revisional power under Section 438(1) from being exercised in relation to an interlocutory order.

Can a person approach both the Sessions Judge and High Court?

No.

If a person has already made an application under Section 438 before either the High Court or Sessions Judge, the same person cannot make a further application under the same section before the other court.

Can the High Court suspend a sentence while examining the record?

Yes.

While calling for the record, the High Court may direct that execution of the sentence or order be suspended.

Can an accused in custody be released during revision?

Yes.

The High Court or Sessions Judge may release the accused on the accused’s own bond or bail bond pending examination of the record.

Topic at a Glance

• Topic: Calling for records to exercise powers of revision
• BNSS Section: Section 438
• Nature: Revisional jurisdiction
• Authorities: High Court and Sessions Judge
• Purpose: Examine correctness, legality, propriety and regularity of proceedings
• Record: Proceedings of an inferior Criminal Court
• Interim power: Suspension of sentence or order
• Bail: Accused in confinement may be released on own bond or bail bond
• Limitation: No revision against interlocutory orders
• Additional limitation: Same person cannot approach both High Court and Sessions Judge under Section 438
• CrPC equivalent: Section 397 CrPC

Quick Revision

• Section 438 BNSS deals with the exercise of revisional powers through calling for records.
• The High Court or Sessions Judge may call for and examine records of an inferior Criminal Court.
• The purpose is to examine correctness, legality, propriety and regularity of proceedings.
• The court may suspend execution of a sentence or order while examining the record.
• An accused in confinement may be released on their own bond or bail bond.
• All Magistrates are treated as inferior to the Sessions Judge for the purposes specified in Section 438.
• Revisional powers cannot be exercised against interlocutory orders.
• A person who has approached either the High Court or Sessions Judge under Section 438 cannot approach the other under the same provision.
• Section 438 substantially corresponds to Section 397 of the CrPC.

ALSO READ: Section 437 – Disposal of case according to decision of High Court

Conclusion

Section 438 of the BNSS provides the foundation for the exercise of revisional jurisdiction by the High Court and Sessions Judge. It allows the superior court to examine the records of inferior Criminal Courts to ensure correctness, legality, propriety and regularity of criminal proceedings. At the same time, restrictions concerning interlocutory orders and successive applications prevent the revisional jurisdiction from being misused to unnecessarily delay criminal proceedings.