When a Magistrate Cannot Dispose of the Case

Sub-section (2). The Magistrate to whom the case is submitted may, if so empowered, either try it himself, or refer it to any subordinate Magistrate having jurisdiction, or commit the accused for trial.

Section 362, commitment after the trial has begun. If, in any inquiry or trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions already contained in the Sanhita, and Chapter XIX applies to the commitment.

Note the outer limit: before signing the judgment. Up to that moment the Magistrate may still commit; after it, he is functus.

Section 363: the previous convict

Sub-section (1). Where a person, having been convicted of an offence punishable under Chapter X or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 with imprisonment for three years or upwards, is again accused of an offence punishable under either of those Chapters with imprisonment for three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that he has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session.

Unless: the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted.

Sub-section (2), the co-accused. When a person is so sent or committed, any other person accused jointly with him in the same inquiry or trial shall be similarly sent or committed, unless the Magistrate discharges him under section 262 or section 268.

Chapter X of the Bharatiya Nyaya Sanhita deals with offences relating to coin, currency notes, bank notes and Government stamps; Chapter XVII with offences against property. The section exists because a habitual offender against coinage or property is a heavier case than his current charge alone suggests.

Section 364: the sentence he cannot pass

Sub-section (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 the 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.

Sub-section (2). Where more accused than one are tried together and the Magistrate considers it necessary to proceed under sub-section (1) as to any of them, he shall forward all the accused who are in his opinion guilty.

Sub-section (3), what the Chief Judicial Magistrate may do. He may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence, and may call for and take any further evidence, and shall pass such judgment, sentence or order as he thinks fit and is according to law.

Two things students get wrong here. First, the Magistrate does not convict and then send for sentence; he records an opinion and forwards the proceedings and the accused. Second, the Chief Judicial Magistrate is not confined to sentencing: he may take further evidence and pass such judgment as he thinks fit, which includes an acquittal.

Section 365: the successor Judge

Sub-section (1). Whenever a 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 who has and exercises that jurisdiction, the successor may act on the evidence recorded by his predecessor, or partly by his predecessor and partly by himself.

Proviso: if the successor is of opinion that further examination of any witness already recorded is necessary in the interests of justice, he may re-summon that witness, and after such further examination, cross-examination and re-examination as he may permit, the witness shall be discharged.

Sub-section (2). Where a case is transferred under the Sanhita from one Judge or Magistrate to another, the former is deemed to cease to exercise jurisdiction and the latter to succeed him within the meaning of sub-section (1).

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

Section 366: the open Court, and the closed one

Sub-section (1), the rule. The place in which any Criminal Court is held for inquiring into or trying an offence shall be deemed to be an open Court, to which the public generally may have access, so far as it can conveniently contain them.

Proviso: the presiding Judge or Magistrate may, if he thinks fit, order at any stage of a particular case that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

Sub-section (2), the mandatory in-camera trials. Notwithstanding sub-section (1), the inquiry into and trial of rape, or of an offence under section 64, 65, 66, 67, 68, 70 or 71 of the Bharatiya Nyaya Sanhita, 2023, or under sections 4, 6, 8 or 10 of the Protection of Children from Sexual Offences Act, 2012, shall be conducted in camera.

First proviso: the presiding Judge may, if he thinks fit, or on the application of either party, allow any particular person access to or presence in the room or building. Second proviso, and it is new: an in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

Sub-section (3), publication. Where proceedings are held under sub-section (2), it is not lawful for any person to print or publish any matter in relation to them except with the previous permission of the Court.

Proviso: the ban on printing or publication in relation to an offence of rape may be lifted, subject to maintaining confidentiality of the name and address of the parties.

Note the two directions of the section. Sub-section (1) is a right of the public, subject to the presiding officer's power to exclude. Sub-section (2) is a duty of the Court, subject to its power to admit a particular person.

A worked example

A first class Magistrate is trying a case of grievous hurt. On the fourth day the medical evidence shows the injured man died of the same injury.

What does he do? If the case is one which ought to be tried by the Court of Session, section 362 requires him to commit it, and he may do so at any stage before signing the judgment.

Change it. The problem is not gravity but jurisdiction: the offence was committed outside his local limits. Then section 361(1)(a) applies. He stays the proceedings and submits the case with a brief report to the Chief Judicial Magistrate, who may try it himself if empowered, refer it to a subordinate Magistrate with jurisdiction, or commit the accused.

Change it again. The accused is shown to have been convicted five years ago of an offence under Chapter XVII of the Bharatiya Nyaya Sanhita punishable with three years or more, and this charge is under the same Chapter and equally punishable. If the Magistrate is satisfied there is ground for presuming he committed it, he shall send him to the Chief Judicial Magistrate or commit him to the Court of Session, unless he is competent to try the case and thinks he can pass an adequate sentence, section 363(1). His co-accused go with him, unless discharged under section 262 or 268.

Now the ordinary case, tried out. The Magistrate has heard both sides and is of opinion that the accused is guilty and deserves a punishment more severe than he can inflict. He records that opinion, submits the proceedings, and forwards the accused to the Chief Judicial Magistrate, section 364(1). That officer may examine the parties, recall witnesses, take further evidence, and pass such judgment, sentence or order as he thinks fit, section 364(3).

The Magistrate is transferred midway. His successor may act on the evidence already recorded, and, if he thinks further examination of a witness necessary in the interests of justice, may re-summon that witness, section 365(1). But not in a summary trial, and not where proceedings were stayed under section 361 or submitted under section 364, sub-section (3).

Finally, a trial for rape. The trial shall be in camera, section 366(2), as far as practicable before a woman Judge; a particular person may be allowed in by the Judge or on a party's application; and nothing may be printed or published about it without the Court's previous permission, though that ban may be lifted while keeping the name and address of the parties confidential.

Distinctions

What this does NOT mean

Section 361 is not a transfer. The Magistrate does not choose the destination; he submits the case, and the Chief Judicial Magistrate decides.

Section 364 is not a conviction. The Magistrate records an opinion that the accused is guilty. The judgment is the Chief Judicial Magistrate's, and it need not be a conviction at all.

Section 365 does not entitle a party to have every witness recalled. The successor may re-summon a witness where he is of opinion that further examination is necessary in the interests of justice.

Section 366(1) is not an absolute right of access. It is subject to the room's capacity and to the presiding officer's power to exclude the public or a named person.

And section 366(2) is not a discretion. For the listed offences the trial shall be in camera; what remains discretionary is admitting a particular person and permitting publication.

Quick revision

• 361: evidence warranting a presumption of no jurisdiction, or that another Magistrate or the CJM should try it, then stay and submit with a brief report; the receiving Magistrate may try, refer or commit.
• 362: at any stage before signing the judgment, if the case ought to be tried by the Court of Session, commit it; Chapter XIX applies.
• 363: a person previously convicted under BNS Chapter X or XVII with three years or more, again accused under those Chapters with three years or more, goes to the CJM or the Court of Session, unless the Magistrate can pass an adequate sentence; co-accused follow, unless discharged under section 262 or 268.
• 364: opinion of guilt plus a punishment different in kind or more severe than he can inflict, or a second class Magistrate's view that a section 125 bond is called for, then record the opinion, submit the proceedings and forward the accused to the CJM, who may examine, recall, take further evidence and pass any lawful judgment; all accused thought guilty go together.
• 365: a successor may act on his predecessor's evidence and may re-summon a witness in the interests of justice; not in summary trials, or cases stayed under 361 or submitted under 364.
• 366: every Criminal Court is an open Court, with a power to exclude; rape, BNS ss.64 to 68, 70, 71 and POCSO ss.4, 6, 8, 10 are tried IN CAMERA, as far as practicable by a woman Judge; a particular person may be admitted; no printing or publication without previous permission, and any lifting for a rape trial keeps the name and address of the parties confidential.

Test yourself

1. What does a Magistrate do when the evidence shows he has no jurisdiction? He stays the proceedings and submits the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate having jurisdiction as the Chief Judicial Magistrate directs, section 361(1).

2. Up to what stage may a Magistrate commit a case to the Court of Session? At any stage of the proceedings before signing the judgment, section 362.

3. A Magistrate is satisfied of guilt but cannot pass a sufficient sentence. Does he convict? No. He records his opinion, submits the proceedings and forwards the accused to the Chief Judicial Magistrate, who may examine the parties, recall witnesses, take further evidence and pass such judgment, sentence or order as he thinks fit, section 364.

4. Can a successor Judge use evidence recorded by his predecessor? Yes, section 365(1); and he may re-summon a witness if he thinks further examination necessary in the interests of justice. The section does not apply to summary trials or to cases stayed under section 361 or submitted under section 364.

5. Which trials must be held in camera? Rape, offences under sections 64 to 68, 70 and 71 of the Bharatiya Nyaya Sanhita, 2023, and offences under sections 4, 6, 8 and 10 of the Protection of Children from Sexual Offences Act, 2012, section 366(2).

6. Who should conduct an in camera trial? As far as practicable, a woman Judge or Magistrate, second proviso to section 366(2).

7. May a newspaper report such a trial? Not without the previous permission of the Court, section 366(3); and the ban may be lifted in a rape case only subject to maintaining the confidentiality of the name and address of the parties.