Section 364 BNSS: Procedure when Magistrate cannot pass sentence sufficiently severe

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 364 BNSS at a Glance

Section 364 BNSS deals with procedure when Magistrate cannot pass sentence sufficiently severe. It replaced Section 325 CrPC on 1 July 2024.

Was CrPC

Section 325 →

Section 364 BNSS Bare Act Text

(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.

Source: Section 364, Bharatiya Nagarik Suraksha Sanhita, 2023

Section 364 BNSS in Simple Words

Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure when a Magistrate cannot pass a sentence sufficiently severe. Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that the accused ought to receive a punishment different in kind from, or more severe than, that which the Magistrate is empowered to inflict, the Magistrate may record the opinion and submit the proceedings, and forward the accused, to the Chief Judicial Magistrate to whom the Magistrate is subordinate.

The same applies to a Magistrate of the second class who is of opinion that the accused ought to be required to execute a bond or bail bond under Section 125 BNSS. The Chief Judicial Magistrate shall pass such judgment, sentence or order in the case as the Chief Judicial Magistrate thinks fit, and is according to law.

When Section 364 BNSS Applies

  • Section 364(1) BNSS applies when a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty and ought to receive a punishment different in kind from, or more severe than, that which the Magistrate is empowered to inflict.
  • Section 364(1) BNSS also applies to a Magistrate of the second class who is of opinion that the accused ought to be required to execute a bond or bail bond under Section 125 BNSS.
  • In either case the Magistrate may record the opinion and submit the proceedings, and forward the accused, to the Chief Judicial Magistrate to whom the Magistrate is subordinate.
  • Under Section 364(2) BNSS, when more accused persons than one are being tried together and the Magistrate considers it necessary to proceed under Section 364(1) BNSS in regard to any of them, the Magistrate shall forward all the accused who are in the opinion of the Magistrate guilty to the Chief Judicial Magistrate.
  • Under Section 364(3) BNSS, the Chief Judicial Magistrate may, if thought fit, examine the parties, recall and examine any witness who has already given evidence in the case, and call for and take any further evidence, and shall pass such judgment, sentence or order in the case as the Chief Judicial Magistrate thinks fit, and is according to law.

Example of Section 364 BNSS

Vikram and Manoj are tried together before a Magistrate. After hearing the evidence for the prosecution and the accused, the Magistrate is of opinion that Vikram and Manoj are guilty, and that Vikram ought to receive a punishment more severe than that which the Magistrate is empowered to inflict. Under Section 364(1) BNSS, the Magistrate records the opinion, submits the proceedings, and forwards the accused to the Chief Judicial Magistrate to whom the Magistrate is subordinate. Under Section 364(2) BNSS, Manoj is forwarded as well, being an accused who is in the opinion of the Magistrate guilty. Under Section 364(3) BNSS, the Chief Judicial Magistrate passes such judgment, sentence or order in the case as the Chief Judicial Magistrate thinks fit, and is according to law.

When Section 364 BNSS Does Not Apply

  • Section 364(1) BNSS speaks of a Magistrate who has heard the evidence for the prosecution and the accused. It does not deal with a Magistrate who has not yet done so.
  • Section 364(1) BNSS speaks of a Magistrate who is of opinion that the accused is guilty. It does not deal with a case where the Magistrate is not of that opinion.
  • Section 364(2) BNSS speaks of the accused who are in the opinion of the Magistrate guilty. It does not deal with an accused who is not in the opinion of the Magistrate guilty.

Section 364 BNSS in the CrPC (Previous Law)

Section 364 BNSS replaced Section 325 CrPC from 1 July 2024.

From 1 July 2024, Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 325 of the Code of Criminal Procedure, 1973. The heading is the same. Section 364(1) BNSS reads a bond or bail bond under Section 125 BNSS where Section 325(1) CrPC read a bond under Section 106 CrPC. Section 364(2) BNSS reads more accused persons than one where Section 325(2) CrPC read more accused than one. Section 364(3) BNSS has the same text as Section 325(3) CrPC.

Each sub-section below names its own source.

FAQs on Section 364 BNSS

When may a Magistrate forward the accused to the Chief Judicial Magistrate under Section 364 BNSS?▼

Under Section 364(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Magistrate may do so when, after hearing the evidence for the prosecution and the accused, the Magistrate is of opinion that the accused is guilty and ought to receive a punishment different in kind from, or more severe than, that which the Magistrate is empowered to inflict. A Magistrate of the second class may also do so when of opinion that the accused ought to be required to execute a bond or bail bond under Section 125 BNSS.

What does Section 364(2) BNSS say when more accused persons than one are being tried together?▼

Section 364(2) BNSS says that when more accused persons than one are being tried together, and the Magistrate considers it necessary to proceed under Section 364(1) BNSS in regard to any of such accused, the Magistrate shall forward all the accused who are in the opinion of the Magistrate guilty to the Chief Judicial Magistrate.

What can the Chief Judicial Magistrate do under Section 364(3) BNSS?▼

Section 364(3) BNSS says the Chief Judicial Magistrate to whom the proceedings are submitted may, if thought fit, examine the parties, recall and examine any witness who has already given evidence in the case, and call for and take any further evidence. The Chief Judicial Magistrate shall pass such judgment, sentence or order in the case as the Chief Judicial Magistrate thinks fit, and is according to law.

What changed from Section 325 CrPC to Section 364 BNSS from 1 July 2024?▼

From 1 July 2024, Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 325 of the Code of Criminal Procedure, 1973. The heading is the same. Section 364(1) BNSS reads a bond or bail bond under Section 125 BNSS where Section 325(1) CrPC read a bond under Section 106 CrPC. Under Section 2(1)(d) BNSS, bail bond means an undertaking for release with surety, and under Section 2(1)(e) BNSS, bond means a personal bond or an undertaking for release without surety. The rest of the text is the same.

Section 364 BNSS: Sub-sections Explained

Section 364(1) BNSS: Procedure when Magistrate cannot pass sentence sufficiently severe

▶

Bare Act Text

(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.

Previous Law

CrPC 325 → Section 364(1) BNSS

Section 364(2) BNSS: Procedure when Magistrate cannot pass sentence sufficiently severe

▶

Bare Act Text

(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.

Previous Law

CrPC 325(2) → Section 364(2) BNSS

Section 364(3) BNSS: Procedure when Magistrate cannot pass sentence sufficiently severe

▶

Bare Act Text

(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.

Previous Law

CrPC 325(3) → Section 364(3) BNSS

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Sources: Bare Act Text, Bharatiya Nagarik Suraksha Sanhita, 2023 · Last updated: 26 Oct 2026 ·