Criminal Revision Petition Under Section 438 BNSS — Scope, Bar on Interlocutory Orders, and Procedure

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

The revisional jurisdiction of the Sessions Court and the High Court is a supervisory check on the correctness, legality, and propriety of orders passed by subordinate criminal courts. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), this power is set out in Chapter XXXII, principally in Section 438 (calling for records), Section 440 (the Sessions Judge’s powers of revision), and Section 442 (the High Court’s powers of revision). These provisions correspond to Sections 397, 401, and related provisions of the erstwhile Code of Criminal Procedure, 1973 (CrPC), and the substance of the revisional scheme is carried forward largely unchanged. This article sets out the statutory text, the bar on revision against interlocutory orders, and the settled principles governing when a criminal court will exercise this jurisdiction.

Statutory Framework

Section 438 BNSS — Calling for Records

Section 438(1) of the BNSS provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situated within its or his local jurisdiction, for the purpose of satisfying itself 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. While calling for the record, the revisional court may direct that execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on his own bond or bail bond pending examination of the record. An Explanation to the section clarifies that all Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, are deemed inferior to the Sessions Judge for the purposes of this provision.

Section 438(2) contains the central limitation on this power: “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.” This is the interlocutory-order bar discussed in detail below.

Section 438(3) prevents forum-shopping between the two revisional authorities: 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 will be entertained by the other of them.

Section 440 BNSS — Sessions Judge’s Powers of Revision

Section 440(1) provides that in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers that may be exercised by the High Court under Section 442(1). Sub-sections (2) and (3) extend the procedural safeguards of Section 442 (opportunity of hearing, the bar on converting an acquittal into a conviction, and the appeal/revision election) to proceedings before the Sessions Judge, and make the Sessions Judge’s decision on a revision final as against that applicant — no further revision at that person’s instance lies to the High Court or any other court thereafter.

Section 442 BNSS — High Court’s Powers of Revision

Section 442(1) empowers the High Court, in any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, to exercise in its discretion any of the powers conferred on a Court of Appeal by Sections 427, 430, 431, and 432 of the BNSS, or on a Court of Session by Section 344.

Several safeguards attach to this power:

Section 442(2) — no order under this section is to be made to the prejudice of the accused or other person unless that person has had an opportunity of being heard, either personally or through an advocate, in their own defence.
Section 442(3) — nothing in the section authorises the High Court to convert a finding of acquittal into one of conviction.
Section 442(4) — where an appeal lies under the BNSS and no appeal is brought, no proceeding by way of revision is to be entertained at the instance of the party who could have appealed.
Section 442(5) — where an appeal lies but a party instead files an application for revision under the erroneous belief that no appeal lies, and the High Court is satisfied that treating the application as an appeal is necessary in the interests of justice, it may treat the revision application as a petition of appeal.

The Bar on Revision Against Interlocutory Orders

The bar in Section 438(2) — that revisional powers cannot be exercised against an interlocutory order — reproduces the corresponding bar that existed under Section 397(2) of the CrPC. The scope of that bar was authoritatively settled by the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

The Court held that an order passed during the course of a proceeding is not necessarily either wholly “final” or purely “interlocutory” — some orders fall in between the two. It rejected the argument that anything short of a final order must be treated as interlocutory, observing that such an interpretation would render the revisional power of the Sessions Court or High Court “almost nugatory.” The Court accordingly recognised a third category — intermediate orders — which, though not final in the strict sense, are not “interlocutory pure and simple” either, and are therefore not barred from revision under sub-section (2). The judgment gives, as illustrations of such intermediate orders, an order taking cognizance of an offence and summoning the accused, and an order framing charges — orders that, if set aside, would have the effect of terminating the proceeding, even though they are passed midway through it.

The Court separately clarified that the interlocutory-order bar under the revisional provision operates only within the exercise of revisional jurisdiction; it does not, by itself, curtail the High Court’s inherent powers (now Section 528 BNSS) to prevent abuse of the process of any court or to secure the ends of justice, though those inherent powers are to be exercised sparingly.

When Revisional Jurisdiction Will Be Exercised

The revisional forum does not sit as a second court of appeal, and does not re-appreciate evidence to decide guilt or innocence. In Amit Kapoor v. Ramesh Chander and Another, (2012) 9 SCC 460, the Supreme Court, dealing with a revision against an order framing charge, held that the object of revisional jurisdiction is to set right a patent defect or an error of jurisdiction or law, and that such jurisdiction is not to be exercised as a matter of course but only where the order under challenge is grossly erroneous, where there is non-compliance with a mandatory provision of law, where a finding is recorded without any evidence, or where material evidence has been overlooked in reaching a conclusion, or where the trial court’s judicial discretion has been exercised arbitrarily or perversely. The Court emphasised that this jurisdiction is to be invoked sparingly and with circumspection, and only in the rarest of cases, so as not to convert the revisional forum into a substitute for trial or appeal.

Procedure Before the Sessions Judge and the High Court

Because Section 438(1) confers concurrent jurisdiction on the Sessions Judge and the High Court over orders of an inferior criminal court within their respective local jurisdictions, a person aggrieved by an order of a Magistrate ordinarily has the option to move either forum in the first instance — but not both. Once an application has been made to one, Section 438(3) bars a further application to the other by the same person on the same order. A revision against an order of a Sessions Court itself lies only to the High Court, since a Sessions Court is not “inferior” to itself for this purpose.

The revision is presented as an application (commonly styled a “criminal revision”) setting out the order under challenge, the grounds on which its correctness, legality, or propriety is questioned, and the relief sought — typically setting aside, modifying, or remanding the order. The revisional court examines the record called for; it is confined to the legality, propriety, and regularity of the proceedings below, subject to the sparing standard set out in Amit Kapoor.

Interplay With the Right of Appeal

Sections 442(4) and 442(5) BNSS build a specific relationship between appeal and revision. Where a substantive right of appeal exists against an order and a party does not exercise it, that party cannot ordinarily fall back on revision as an alternative route — Section 442(4) closes that door. The exception in Section 442(5) is narrow: it applies only where the applicant genuinely, and mistakenly, believed no appeal lay, and even then the High Court’s decision to treat the revision as an appeal is discretionary and conditioned on the interests of justice.

Practical Points

A charge-framing order or a summoning order is treated as an “intermediate order” under the Madhu Limaye classification, and revision against it is therefore not barred by Section 438(2), even though such an order is passed midway through a criminal proceeding.
A purely interlocutory order — for example, one granting or refusing an adjournment — cannot be challenged by revision under Section 438 or Section 442; recourse, if any, lies elsewhere, subject to the limits Madhu Limaye recognises on inherent powers under Section 528 BNSS.
Revisional jurisdiction is discretionary and is exercised sparingly, per Amit Kapoor v. Ramesh Chander — it corrects patent illegality or jurisdictional error, not evidence already appreciated by the trial court.
Where an appeal against the order is available under the BNSS, Section 442(4) ordinarily requires that route instead of revision, once the appeal right goes unexercised.
The Sessions Judge and the High Court have concurrent original revisional jurisdiction over orders of inferior courts, but Section 438(3) bars successive applications to each on the same order.

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