Code
(1) Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and if such Court is that of a Judicial Magistrate other than the Chief Judicial Magistrate, the High Court’s judgment or order shall be sent through the Chief Judicial Magistrate, and if such Court is that of an Executive Magistrate, the High Courts judgment or order shall be sent through the District Magistrate.
(2) The Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court; and if necessary, the record shall be amended in accordance therewith.
Explanation
This section allows the High Court, after dismissing an appeal, to certify the appeal to a lower court for further proceedings. This certification is usually done when:
- The High Court finds that the lower court has made a substantial error of law or procedure.
- The High Court deems it necessary in the interest of justice to allow further investigation or evidence.
- The High Court feels that the lower court is in a better position to determine the facts of the case.
Illustration
Suppose ‘A’ appeals against a lower court’s judgment in the High Court. The High Court dismisses the appeal, finding no merit in it. However, the High Court notices that the lower court had incorrectly interpreted a crucial provision of law. In such a case, the High Court can certify the appeal back to the lower court under Section 388 for fresh consideration, directing the lower court to reconsider the judgment based on the correct interpretation of the law.
Common Questions and Answers
Q: Who can certify an appeal under Section 388?
A: Only the High Court can certify an appeal back to the lower court.
Q: What happens when an appeal is certified back to the lower court?
A: The lower court will have to reconsider the case based on the High Court’s order and the certified appeal. It can then either confirm its original judgment or pass a fresh judgment based on the High Court’s directives.
Q: Can a party appeal against the High Court’s order certifying the appeal to the lower court?
A: No, there is no provision for appealing against the High Court’s order under Section 388.
