Sections 326 and 327 CrPC: Evidence Recorded by a Predecessor Court and the Open Court Rule
Sections 326 and 327 of the Code of Criminal Procedure, 1973 formed part of the general provisions governing inquiries and trials. This article explains the provisions as they stood immediately before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.
Section 326 CrPC - Conviction or Commitment on Evidence Partly Recorded by One Judge or Magistrate and Partly by Another
Meaning: Section 326 addressed continuity of an inquiry or trial when the Judge or Magistrate who had recorded all or part of the evidence ceased to exercise jurisdiction and was succeeded by another competent Judge or Magistrate. The successor could ordinarily act upon evidence already recorded instead of requiring the entire evidence to be recorded afresh.
Section 326(1): power of the successor court
Where a Judge or Magistrate, after hearing and recording the whole or part of the evidence in an inquiry or trial, ceased to exercise jurisdiction and was succeeded by another Judge or Magistrate exercising that jurisdiction, the successor could act on the evidence recorded by the predecessor, or on evidence partly recorded by the predecessor and partly by the successor.
If the succeeding Judge or Magistrate considered further examination of a previously examined witness necessary in the interests of justice, that witness could be re-summoned and subjected to such further examination, cross-examination and re-examination as the court permitted.
Section 326(2): transfer of a case
For the purpose of sub-section (1), when a case was transferred under the Code from one Judge to another Judge, or from one Magistrate to another Magistrate, the former was treated as having ceased to exercise jurisdiction and the transferee court as the successor.
Section 326(3): proceedings excluded
The rule did not apply to summary trials, to cases in which proceedings had been stayed under Section 322 CrPC, or to proceedings submitted to a superior Magistrate under Section 325 CrPC.
Section 327 CrPC - Court to Be Open
Meaning: Section 327 stated the general principle that a criminal court conducting an inquiry or trial is an open court, while also authorising exclusion of the public in an appropriate case and mandating in-camera proceedings for specified sexual offences.
Section 327(1): general rule of open court
The place where a Criminal Court was held for inquiry into or trial of an offence was deemed an open court. Members of the public could generally have access so far as the place could conveniently accommodate them. The presiding Judge or Magistrate could, however, direct at any stage that the public generally or a particular person should not have access to, or remain in, the courtroom or building used by the court.
Section 327(2): mandatory in-camera inquiry and trial
Notwithstanding the open-court rule, inquiry into and trial of rape and the specified offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E of the Indian Penal Code, 1860 were required to be conducted in camera. The statutory framework also contemplated restricted access and, as far as practicable, conduct of the in-camera trial by a woman Judge or Magistrate.
Section 327(3): restriction on publication
Where proceedings were held in camera under sub-section (2), publication or printing of matter relating to those proceedings was prohibited without the previous permission of the court. In rape cases, permission to lift the publication restriction remained subject to maintaining confidentiality of the name and address of the parties.
Practical Effect of Sections 326 and 327 CrPC
Section 326 promoted continuity when the judicial officer changed during an inquiry or trial, while preserving the successor court's ability to recall a witness where further examination was necessary in the interests of justice. Its express exclusion of summary trials was important because such trials were governed by a more immediate procedure.
Section 327 balanced the principle of open justice with privacy, dignity and fair-trial requirements. The general rule favoured public access, but the court retained power to restrict access, and specified sexual-offence proceedings were subject to the special in-camera regime and publication safeguards.
State Amendments and Statutory Notes
The pre-BNSS text also contained State amendments. The source page records amendments relating to Rajasthan and Uttar Pradesh under Section 326 and amendments relating to Chhattisgarh and Arunachal Pradesh under Section 327. Because State amendments may operate differently according to territorial application and later legislative changes, the applicable State law should be checked for a particular proceeding.
For the central statutory text, see the official India Code resource in the sidebar.