The purpose of making a reference under Section 366 Cr.P.C. is enunciated partly under Section 357 Cr.P.C. wherein it is pointed out that the High Court, if it thinks fit in response to a reference, that additional evidence need be taken note of, may either record additional evidence and consider the efficacy of the same or may direct the sessions judge to record additional evidence and submit the same to the High Court for its consideration along with the material already found on the record.
In Bhupendra’s case [AIR 1968 S.C. 1438] and later cases it was made clear that the duty of the High Court in dealing with the reference is not only to see whether the order passed by the sessions judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers desirable in order to ascertain the guilt or innocence of the convicted person.
There are instances where the reference Court admitted a confession which was rejected by the Sessions Judge and instances where the judges of the High court made local inspection of the scene of offence during the process of hearing the reference.
Section 368 Cr.P.C. empowers the High Court to confirm the sentence of death or pass any other sentence warranted by law. On a reference under Sec. 366 Cr.P.C. the High Court may annul the conviction but convict the accused for another offence for which the sessions Court could have convicted the accused.
ADVERTISEMENTS:
The High Court as a Court of reference is entitled to order a fresh trial on the same charges or altered charges and may also acquit the accused wholly. It is now settled law which was explained long ago in Abdul Rahim’s case [AIR 1946 P.C. 82] that in performing it’s duty on a reference the High court is bound to consider the whole case including all questions of facts and law.
The proceedings before the High Court, being a continuation of the trial, the reference Court should reappraise and reassess the entire facts and law.