Section 438 BNSS: Calling for Records to Exercise Powers of Revision
Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the High Court or a Sessions Judge to call for and examine the record of proceedings before an inferior Criminal Court to test the correctness, legality or propriety of a finding, sentence or order and the regularity of the proceedings.
Section 438 BNSS at a glance
- The High Court and Sessions Judge can call for and examine records of proceedings before inferior Criminal Courts within their respective local jurisdiction.
- The revisional examination concerns correctness, legality or propriety of findings, sentences or orders, as well as regularity of proceedings.
- While calling for the record, the revisional court may suspend execution of a sentence or order.
- If an accused is confined, the court may release the accused on an own bond or bail bond while the record is examined.
- Revisional powers under this provision cannot be exercised against an interlocutory order.
- A person who has applied in revision to either the High Court or Sessions Judge cannot make a further application to the other forum under the same section.
What Section 438 BNSS means
Section 438 is a supervisory revisional provision. It enables a superior criminal court to examine the record of an inferior Criminal Court where scrutiny is required regarding the legal correctness, propriety or regularity of the proceeding or order. Revision is distinct from an appeal: it is not a general rehearing on facts merely because another view is possible.
For the purposes of sub-section (1) and Section 439, the statutory explanation treats all Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, as inferior to the Sessions Judge.
Text of Section 438 - Calling for records to exercise powers of revision
438. (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, and 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 his own bond or bail 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.
Key legal elements of Section 438
1. Power to call for the record
The High Court or Sessions Judge may obtain the record of a proceeding before an inferior Criminal Court within the relevant local jurisdiction. The purpose is to enable judicial scrutiny of the proceeding and the impugned finding, sentence or order.
2. Correctness, legality and propriety
The statutory test is wider than a bare jurisdictional check. The revisional court may examine whether the decision is correct in the revisional sense, lawful, proper and procedurally regular. The jurisdiction nevertheless remains revisional rather than a full statutory appeal.
3. Suspension of sentence or order
When the record is called for, the High Court or Sessions Judge may direct suspension of execution of the sentence or order while the record is under examination.
4. Release from confinement
Where the accused is in confinement, Section 438(1) permits release on an own bond or bail bond pending examination of the record. The power operates in connection with the revisional examination contemplated by the section.
5. Interlocutory orders are excluded
Section 438(2) expressly bars exercise of revisional powers in relation to an interlocutory order passed in an appeal, inquiry, trial or other proceeding. Whether a particular order is interlocutory depends on its legal character and effect, not merely on the label used by a party.
6. No second revision before the other forum
Under Section 438(3), once a person has made an application under this section either to the High Court or to the Sessions Judge, a further application by the same person cannot be entertained by the other forum. The provision therefore requires a careful choice of revisional forum at the first instance.
Section 438 BNSS and former Section 397 CrPC
Section 438 BNSS substantially carries forward the revisional record-calling framework that was contained in Section 397 of the Code of Criminal Procedure, 1973. Older judicial decisions interpreting Section 397 CrPC may therefore remain relevant to comparable language and principles, subject to the BNSS, its commencement and any applicable saving or transitional provisions.
| Subject | BNSS, 2023 | Earlier CrPC, 1973 |
|---|---|---|
| Calling for records to exercise powers of revision | Section 438 | Section 397 |
| Power to order inquiry | Section 439 | Section 398 |
| Sessions Judge's powers of revision | Section 440 | Section 399 |
Related BNSS provisions
Section 438 should be read with the surrounding provisions in Chapter XXXII, including Section 439 - Power to order inquiry, Section 440 - Sessions Judge's powers of revision, and the provisions governing the High Court's revisional powers and the transfer or withdrawal of revision cases.
Official sources
For the current statutory text and commencement information, refer to the official India Code page for the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Ministry of Home Affairs commencement notification dated 23 February 2024.
Frequently asked questions
Who can call for records under Section 438 BNSS?
The High Court or any Sessions Judge may call for and examine the record of proceedings before an inferior Criminal Court situated within the relevant local jurisdiction.
Can Section 438 revision be used against an interlocutory order?
No. Section 438(2) expressly bars exercise of the revisional powers conferred by sub-section (1) in relation to an interlocutory order.
Can the same person file revision first before the Sessions Judge and then before the High Court under Section 438?
Section 438(3) states that where a person has made an application under the section to either the High Court or the Sessions Judge, a further application by the same person shall not be entertained by the other.
Can a sentence be suspended while the record is examined?
Yes. Section 438(1) authorises the revisional court, when calling for the record, to direct suspension of execution of a sentence or order. It also permits release of an accused in confinement on an own bond or bail bond pending examination of the record.