Section 364 BNSS: Procedure when Magistrate cannot pass sentence sufficiently severe (Formerly Section 325 CrPC)

Section 364 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure when Magistrate cannot pass sentence sufficiently severe

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond or bail bond under section 125, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.

(2) When more accused persons than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.

(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence and shall pass such judgment, sentence or order in the case as he thinks fit, and is according to law.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 364

Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 325 of the CrPC, 1973) prescribes the procedure when a Magistrate, after finding an accused guilty, forms the opinion that the accused ought to receive a punishment more severe than the Magistrate is empowered to inflict.

Finding of Guilt Recorded: The Magistrate must first record an opinion that the accused is guilty of the offence.
Sentencing Competence Exceeded: The Magistrate must form the opinion that the convict ought to receive a sentence different from, or more severe than, that which the Magistrate is empowered to inflict.
Submission to Chief Judicial Magistrate: The Magistrate submits the proceedings and forwards the accused to the Chief Judicial Magistrate, who may pass any sentence authorized by law.

Key Landmark Precedents:

State of Gujarat v. Gordhan, 1996 Cri LJ 234: The High Court held that the Magistrate cannot submit proceedings under Section 325 CrPC without first recording a clear finding of guilt against the accused.
Chhaganlal v. State, 1971 Cri LJ 1235: Affirmed that the CJM acting under this section has power to hear the convict on sentence and may also examine additional evidence before passing sentence.

Courtroom Practice & Strategic Litigation Guidance:

If a Magistrate forwards a case under Section 364, prepare a comprehensive mitigation brief for the CJM, arguing that the Magistrate's initial sentencing power was sufficient and no extraordinary severity is warranted.