Section 365 BNSS: Conviction or commitment on evidence partly recorded by one Magistrate and partly by another (Formerly Section 326 CrPC)

Section 365 of Bharatiya Nagarik Suraksha Sanhita, 2023: Conviction or commitment on evidence partly recorded by one Magistrate and partly by another

Official Bare Act Text

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

(1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:

Provided that if the succeeding Judge or Magistrate is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Sanhita from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 361 or in which proceedings have been submitted to a superior Magistrate under section 364.

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 365

Section 365 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 326 of the CrPC, 1973) governs conviction or commitment on evidence partly recorded by one Magistrate or Judge and partly by another upon transfer or succession in office.

Succession in Office: Applies whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence, ceases to exercise jurisdiction and is succeeded by another.
Acting on Predecessor's Record: The succeeding Judge or Magistrate may act on the evidence so recorded by their predecessor, or partly recorded by their predecessor and partly by themselves.
Accused's Right to Recall: In any inquiry or trial, the accused may demand that any prosecution witness be recalled and re-examined if the succeeding magistrate thinks fit to ensure justice.

Key Landmark Precedents:

Pyare Lal v. State of Punjab, AIR 1962 SC 690: The Supreme Court settled that Section 326 CrPC is an exception to the rule that the judge who heard the evidence must decide the case; however, it does not apply to summary trials where only notes of substance are recorded.
Gopinath v. State of Kerala, (2001) 5 SCC 740: Reaffirmed that in summary trials, a successor magistrate cannot act on evidence recorded by a predecessor and must hold a de novo trial.

Courtroom Practice & Strategic Litigation Guidance:

In summary trials or Section 138 NI Act trials, if a new Magistrate takes over after evidence was partly recorded, insist on a de novo trial citing Pyare Lal; in warrant cases, demand the recall of key witnesses under Section 365(1) Proviso.