Section 364 BNSS: Procedure When Magistrate Cannot Pass Sentence Sufficiently Severe

Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedure to be followed when a Magistrate, after hearing the prosecution and the accused, finds the accused guilty but considers that the punishment required is different in kind from, or more severe than, the punishment the Magistrate is legally empowered to impose.

Bharatiya Nagarik Suraksha Sanhita, 2023 | Act No. 46 of 2023 | In force from 1 July 2024

In simple terms: the Magistrate does not impose a sentence beyond his or her lawful sentencing power. Instead, after recording the opinion, the proceedings and the accused are sent to the Chief Judicial Magistrate as provided by Section 364.

Text of Section 364 BNSS

364. (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.

What Section 364 BNSS Means

Section 364 addresses a sentencing-power problem after a Magistrate has heard the evidence and formed the opinion that the accused is guilty. If the Magistrate considers the appropriate punishment to be outside the kind or severity that the Magistrate is empowered to impose, the section permits the Magistrate to record that opinion and transmit the proceedings, together with the accused, to the Chief Judicial Magistrate.

The provision also specifically covers a Magistrate of the second class who considers that an accused should be required to execute a bond or bail bond under Section 125 BNSS. Section 125 deals with security for keeping the peace on conviction.

Procedure Under Section 364

The Magistrate first hears the evidence for the prosecution and the accused.
The Magistrate forms the opinion that the accused is guilty.
The Magistrate considers that a punishment different in kind or more severe than the Magistrate can lawfully impose is appropriate, or the special situation concerning a second-class Magistrate and Section 125 applies.
The Magistrate may record the opinion, submit the proceedings and forward the accused to the subordinate jurisdiction's Chief Judicial Magistrate.
If several accused are tried together and Section 364(1) is invoked for any of them, all accused whom the Magistrate considers guilty must be forwarded to the Chief Judicial Magistrate.
The Chief Judicial Magistrate may examine the parties, recall and examine an earlier witness, receive further evidence, and then pass a lawful judgment, sentence or order.

Role of the Chief Judicial Magistrate

The Chief Judicial Magistrate is not restricted to mechanically accepting the referring Magistrate's view. Under sub-section (3), the Chief Judicial Magistrate may examine the parties, recall and examine witnesses who have already testified, and call for further evidence. The final judgment, sentence or order must be one the Chief Judicial Magistrate considers fit and lawful.

Section 125 Referred to in Section 364

Section 125 BNSS is titled "Security for keeping peace on conviction." It authorizes the competent court, in the situations specified in that provision, to require execution of a bond or bail bond for keeping the peace for a period not exceeding three years. Section 364(1) refers to Section 125 specifically in relation to a Magistrate of the second class.

Section 364 at a Glance

Point	Section 364 BNSS position
Stage	After hearing the evidence for the prosecution and the accused and forming an opinion of guilt.
Reason for reference	The appropriate punishment is different in kind or more severe than the Magistrate is empowered to inflict, or the specified Section 125 situation applies to a second-class Magistrate.
Authority receiving proceedings	Chief Judicial Magistrate to whom the Magistrate is subordinate.
Joint trial	All accused whom the Magistrate considers guilty are forwarded when sub-section (1) is invoked for any of them.
CJM's power	May examine parties, recall witnesses, take further evidence and pass a lawful judgment, sentence or order.

Commencement and Official Source

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed 1 July 2024 as the commencement date for the provisions of the BNSS, subject to the exception specified in the commencement notification concerning the First Schedule entry related to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

For the authoritative statutory text, see the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code. The commencement notification is available from the Ministry of Home Affairs.