Section 397 CrPC vs Section 438 BNSS — Criminal Revision (CrPC 397-401)

In India, Sections 438 to 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the revision provisions, Sections 397 to 401 of the Code of Criminal Procedure, 1973 (CrPC), from 1 July 2024. The powers, the bar on revising interlocutory orders and the one-revision rule are unchanged; the edits are drafting and renumbering only.

At a glance

Revision is a procedural remedy, so no punishment or First Schedule classification applies.

What changed

• Minor edit — Section 438(1) (CrPC 397(1)): an accused in confinement may be released "on bail or on his own bond" (CrPC) becomes "on his own bond or bail bond" (BNSS). The BNSS defines "bond" as "a personal bond or an undertaking for release without surety" and "bail bond" as "an undertaking for release with surety" (Section 2(1)(d) and (e)). The Explanation's "section 398" becomes "section 439"; the rest is the same.
• Identical — Sections 438(2) and 438(3) (CrPC 397(2) and (3)): the interlocutory-order bar and the rule that an application made by a person to one court bars a further application by the same person to the other.
• Minor edit — Section 439 (CrPC 398): a complaint "dismissed under section 203 or sub-section (4) of section 204" becomes one "dismissed under section 226 or sub-section (4) of section 227"; "section 397" becomes "section 438". The proviso requiring a discharged person to be allowed to show cause is unchanged.
• Minor edit — Section 440 (CrPC 399): "section 401" becomes "section 442" in sub-sections (1) and (2). Sub-section (3), finality of the Sessions Judge's decision, is unchanged.
• Identical — Section 441 (CrPC 400): word for word the same.
• Minor edit — Section 442 (CrPC 401): the appellate powers the High Court may use are now "sections 427, 430, 431 and 432" (were 386, 389, 390 and 391), the Court of Session power is "section 344" (was 307, tender of pardon), and an equally divided Bench is dealt with under "section 433" (was 392). "Court of Revision" is printed "Court of revision". In sub-section (2), "by pleader" becomes "by advocate"; in sub-sections (4) and (5), "this Code" becomes "this Sanhita".
• Neighbouring provisions: Section 402 CrPC (transfer of revision cases) is Section 443 BNSS, same text. Section 403 CrPC (no party has a right to be heard, but the court may hear any party) is Section 444 BNSS, with "by pleader" becoming "by an advocate" and "this Code" becoming "this Sanhita". Section 482 CrPC (inherent powers) is Section 528 BNSS. Section 483 CrPC required superintendence over "Courts of Judicial Magistrates"; Section 529 BNSS adds "Courts of Session".

Statutory text (relevant extract)

Extract, Section 397(1) CrPC (repealed from 1 July 2024), closing words:

...and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

Extract, Section 438 BNSS, sub-sections (1) (closing words), (2) and (3):

...and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.

(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.

Extract, Section 442 BNSS, sub-sections (2) and (3):

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by advocate in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

How it works — the steps

1. Which order can be revised. Section 438(1) covers "any finding, sentence or order, recorded or passed" by an inferior criminal court, and "the regularity of any proceedings". Every Magistrate is inferior to the Sessions Judge (Explanation). Section 438(2) excludes interlocutory orders.
2. Which court. The High Court or the Sessions Judge within whose local jurisdiction the inferior court sits. Under Section 441, an Additional Sessions Judge exercises the Sessions Judge's powers in cases transferred to him by a general or special order.
3. One application per person. Section 438(3) bars the same person from applying to the other court once he has applied to one. Under Section 440(3), once the Sessions Judge decides a person's revision application, no further revision "at the instance of such person" is entertained by the High Court or any other court. Where persons convicted at the same trial split their applications between the two courts, Section 443 lets the High Court decide which court disposes of all of them.
4. Interim relief. When calling for the record, the court may suspend execution of a sentence or order and release an accused in confinement on his own bond or bail bond (Section 438(1)).
5. Further inquiry. Under Section 439, the court may direct the Chief Judicial Magistrate to make, or have a subordinate Magistrate make, further inquiry into a complaint dismissed under Section 226 or Section 227(4), or into a discharged accused's case, after giving the discharged person a chance to show cause.
6. Powers and limits. Under Section 442(1), in any proceeding whose record it has called for "or which otherwise comes to its knowledge", the High Court may use an appellate court's powers under Sections 427, 430, 431 and 432, or a Court of Session's power under Section 344. It may not make an order prejudicing the accused or other person without a hearing (442(2)), convert an acquittal into a conviction (442(3)), or entertain revision by a party who could have appealed but did not (442(4)), though it may treat a revision filed under an erroneous belief that no appeal lies as an appeal (442(5)). A Sessions Judge has the same powers and limits for records he has called for (Section 440(1) and (2)).

What this means in practice

For the accused and defence advocate

• Before filing, identify whether an appeal lies. If it does, Section 442(4) bars revision at your instance; file the appeal.
• Choose the forum once. Applying to the Sessions Judge closes the High Court as a second revisional forum for you (Sections 438(3) and 440(3)); the High Court's inherent power under Section 528 is exceptional (see Krishnan below).
• If the complainant challenges the dismissal of a complaint or your discharge, Section 442(2), applied to the Sessions Judge by Section 440(2), entitles you to be heard before any adverse order (see Manharibhai below). Under Section 439, a direction for further inquiry into a discharged accused's case needs a show-cause opportunity first.
• If in custody under the order challenged, ask for suspension and release on your own bond or bail bond under Section 438(1).

For the complainant or victim

• A dismissed complaint (Section 226) or a discharge can be taken in revision; Section 439 provides for a direction for further inquiry. Against an acquittal, check first whether an appeal lies under Chapter XXXI BNSS; revision cannot convert an acquittal into a conviction (Section 442(3)).

Time limit

• Article 131 of the Limitation Act, 1963 Schedule gives ninety days from the order sought to be revised, but its text names the Code of Criminal Procedure, 1898. Section 8 of the General Clauses Act, 1897 reads references to a repealed and re-enacted law as references to the re-enactment; applying it here is a reading, so confirm your High Court's practice.

Judgments that still matter

Madhu Limaye v. The State of Maharashtra, [1978] 1 S.C.R. 749 (1977 INSC 206) — 31 October 1977. A three-Judge Bench (P.K. Goswami, N.L. Untwalia and D.A. Desai JJ.; judgment by Untwalia J.) held that "interlocutory order" in Section 397(2) CrPC is not simply the converse of "final order": some orders fall "in between the two", and the bar "is not meant to be attracted to such kinds of intermediate orders". It held that the bar operates only on the revisional power, so the inherent power under Section 482 remains for abuse of process or to secure the ends of justice, to be used "very sparingly" — modifying the contrary view in Amar Nath v. State of Haryana, [1978] 1 S.C.R. 222. The report shows no paragraph numbers. Section 438(2) BNSS repeats the words construed, and Section 528 BNSS repeats Section 482.

Krishnan and Anr. v. Krishnaveni and Anr., [1997] 1 S.C.R. 511 (1997 INSC 52) — 24 January 1997. A three-Judge Bench (judgment by K. Ramaswamy J.) held that a second revision to the High Court after the Sessions Judge has decided one is barred by Section 397(3), and that "ordinarily" neither Section 397(1) nor Section 482 may be used to circumvent the bar. It held that the High Court's suo motu power under Section 401 and its continuous superintendence under Section 483 remain, to correct grave miscarriage of justice, to be used sparingly. It also held that the State is not a "person" for the purpose of the Section 397(3) bar. The report shows no paragraph numbers. The words construed are repeated in Sections 438(3), 440(3) and 442(1) BNSS; Section 529 BNSS now also names Courts of Session.

Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., [2012] 8 S.C.R. 1015 (2012 INSC 439) — 1 October 2012. A three-Judge Bench (judgment by R.M. Lodha J.) held that "other person" in Section 401(2) includes suspects named in a complaint before process issues (para 52), and that when a complainant challenges a dismissal under Section 203 in revision, "the suspects get right of hearing before revisional court although such order was passed without their participation" (para 54). If the revisional court restores the complaint, they have no right to be heard by the Magistrate before process issues (para 58). Section 442(2) BNSS repeats the words, with "advocate" for "pleader".

Khalil Pasha & Ors. v. Abdul Rasheed & Anr., 2026 INSC 754 — 28 July 2026. K. Vinod Chandran and J.B. Pardiwala JJ. heard a challenge to a High Court order that, on a victim's revision against a murder acquittal, remitted the case for fresh appreciation of evidence. The Court read Section 401(4) as barring revision by a party who had an appeal, while noting that Section 401(1) lets the High Court act on a proceeding that "otherwise comes to its knowledge" (para 6) and that Section 401(5) permits conversion of a revision into an appeal (paras 7-8). It observed that Section 442 BNSS is "analogous to Section 401 of the Cr.P.C; a verbatim reproduction" (para 8) — the operative words are the same, though the cross-references are renumbered. Finding "this was not a fit case for converting the revision petition ... to an appeal" (para 20), it restored the acquittal (para 22).

Kuntegowda v. Thurubaiah, 2026 INSC 790 — 4 August 2026. B.V. Nagarathna and Ujjal Bhuyan JJ. extracted Section 438 BNSS and held that in revision "the Court does not act as an appellate Court" and findings "should not be reversed merely on the ground that an alternative view is possible" (para 7). The High Court may interfere only where the order is perverse or grossly erroneous, rests on irrelevant or no material, or ignores relevant material (para 7.3). It restored concurrent convictions under Section 138 of the Negotiable Instruments Act, 1881 (para 7.5).

Which law applies to your case

Section 531(2)(a) BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is disposed of under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a revision application pending on that date continues under Sections 397 to 401 CrPC, and an application filed on or after it is governed by Sections 438 to 442 BNSS. As the operative words are the same, CrPC judgments remain relevant on a reading of the text. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 397 CrPC? Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 397 CrPC. It lets the High Court or any Sessions Judge call for the record of any inferior criminal court within its local jurisdiction to check the correctness, legality or propriety of a finding, sentence or order. Sections 398 to 401 CrPC are now Sections 439 to 442 BNSS, in the same order.

Has the law of criminal revision changed under the BNSS? Only in drafting. Section 438(1) BNSS releases an accused in confinement 'on his own bond or bail bond' instead of 'on bail or on his own bond', cross-references are renumbered, and Section 442 says 'advocate' for 'pleader' and 'Sanhita' for 'Code'. The bar on revising interlocutory orders (Section 438(2)), the one-revision rule (Sections 438(3) and 440(3)) and the High Court's powers (Section 442) keep their CrPC wording.

Can I file a revision against an interlocutory order under the BNSS? No. Section 438(2) BNSS, like Section 397(2) CrPC, bars revision of 'any interlocutory order passed in any appeal, inquiry, trial or other proceeding'. In Madhu Limaye v. State of Maharashtra, [1978] 1 S.C.R. 749, the Supreme Court held that the bar does not reach intermediate orders that are not purely interlocutory, and that the High Court's inherent power (now Section 528 BNSS) survives for rare cases of abuse of process.

Can I file a revision in the High Court after the Sessions Judge dismisses mine? Not as of right. Section 438(3) BNSS bars a second application by the same person to the other court, and Section 440(3) makes the Sessions Judge's decision on that person's revision final. In Krishnan v. Krishnaveni, [1997] 1 S.C.R. 511, the Supreme Court held that the High Court may still act under its inherent and suo motu powers to prevent a miscarriage of justice, but only sparingly.

Can a High Court convert an acquittal into a conviction in revision? No. Section 442(3) BNSS, like Section 401(3) CrPC, says nothing in the section authorises a High Court to convert a finding of acquittal into one of conviction. Where an appeal lies and was not brought, Section 442(4) bars revision by the party who could have appealed, though Section 442(5) lets the High Court treat a revision filed under an erroneous belief that no appeal lies as an appeal.

Must the accused be heard before a revisional court sets aside an order in his favour? Yes. Section 442(2) BNSS bars any order to the prejudice of the accused or other person unless he has had an opportunity of being heard personally or by advocate. In Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, [2012] 8 S.C.R. 1015, the Supreme Court held that persons named in a complaint dismissed by the Magistrate must be heard when the complainant challenges the dismissal in revision.

Which law governs a revision petition that was pending on 1 July 2024? Section 531(2)(a) BNSS provides that any appeal or application pending immediately before the BNSS came into force is disposed of under the CrPC as if the BNSS had not come into force. On a reading of that text, a revision application pending on 1 July 2024 continues under Sections 397 to 401 CrPC, and one filed on or after that date is governed by Sections 438 to 442 BNSS.

Related

• Section 482 CrPC — inherent powers of the High Court
• Discharge: CrPC 227 and 239 vs BNSS 250 and 262
• Appeal against acquittal and the victim's appeal
• Private complaint: CrPC 200 vs BNSS 223
• Suspension of sentence pending appeal: CrPC 389 vs BNSS 430
• CrPC to BNSS master table
• Section 483 CrPC vs Section 529 BNSS — Duty of the High Court to Exercise Continuous Superintendence over Courts
• Sections 225–237 CrPC vs Sections 248–260 BNSS — Trial Before a Court of Session
• Sections 406–412 CrPC vs Sections 446–452 BNSS — Transfer of Criminal Cases

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(b), (d) and (e), 226, 227(4), 344, 427, 430 to 433, 438 to 445, 528, 529 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 397 to 403, 405 and 483.
• Limitation Act, 1963: Schedule, Article 131. General Clauses Act, 1897: Section 8.
• Judgments read in full text: Madhu Limaye v. State of Maharashtra (1978_1_749_760_EN.md); Amar Nath v. State of Haryana (1978_1_222_230_EN.md); Krishnan v. Krishnaveni (1997_1_511_522_EN.md); Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012_8_1015_1057_EN.md); Khalil Pasha v. Abdul Rasheed (Diary_2445-2023_Judgment.md); Kuntegowda v. Thurubaiah (Diary_3876-2024_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.