Introduction
Section 365 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a procedural situation where the evidence in an inquiry or trial has been recorded partly by one Magistrate and partly by another Magistrate.
The provision lays down what the Magistrate who ultimately completes the proceedings may do when the Magistrate who originally recorded some of the evidence is no longer able to continue the inquiry or trial.
The section seeks to ensure continuity in criminal proceedings while also providing a procedure for dealing with evidence that was recorded by a different Magistrate.
Meaning of Section 365
Section 365 applies where:
- an inquiry or trial is being conducted before a Magistrate;
- part of the evidence has already been recorded by one Magistrate; and
- another Magistrate subsequently takes over the inquiry or trial.
The second Magistrate may act on the evidence already recorded by the earlier Magistrate and proceed with the case from the stage at which it was left.
The provision therefore prevents the entire proceeding from necessarily becoming ineffective merely because the Magistrate who recorded part of the evidence is no longer conducting the case.
Statutory Basis
Section 365 of the BNSS deals with the conviction or commitment of an accused where evidence has been recorded partly by one Magistrate and partly by another.
The provision contains specific safeguards concerning the use of evidence recorded by the earlier Magistrate.
Its purpose is to maintain continuity in proceedings while ensuring that the succeeding Magistrate can properly deal with the evidence already recorded.
Essential Elements
1. Evidence Must Have Been Recorded by More Than One Magistrate
The section applies where evidence has been recorded partly by one Magistrate and partly by another.
Therefore, there must be a change of Magistrate during the inquiry or trial.
2. The Same Proceeding Must Continue
The evidence recorded by the different Magistrates must relate to the same inquiry or trial.
The provision is concerned with continuity of an existing proceeding rather than starting an entirely new proceeding.
3. Succeeding Magistrate May Act on Previously Recorded Evidence
The Magistrate who continues the proceeding is permitted to take into consideration the evidence already recorded by the earlier Magistrate.
This avoids unnecessary repetition of the entire evidentiary process.
4. Safeguard Against Prejudice
The provision contains a safeguard where the succeeding Magistrate considers that further examination of a witness whose evidence was already recorded is necessary in the interests of justice.
The Magistrate may summon and examine the witness again.
This ensures that reliance on evidence recorded by the earlier Magistrate does not compromise a fair adjudication.
Procedure Under Section 365
Step 1: Proceedings Begin Before a Magistrate
An inquiry or trial is commenced before a Magistrate.
Step 2: Evidence Is Recorded
The Magistrate records evidence during the proceedings.
Step 3: Another Magistrate Takes Over
For a legally recognised reason, another Magistrate subsequently takes over the inquiry or trial.
Step 4: Earlier Evidence Is Considered
The succeeding Magistrate may consider the evidence already recorded by the earlier Magistrate.
Step 5: Further Examination Where Necessary
If the succeeding Magistrate considers it necessary in the interests of justice to re-examine a witness whose evidence was already recorded, the witness may be summoned and examined again.
Step 6: Proceedings Continue
The succeeding Magistrate proceeds with the remaining part of the inquiry or trial and ultimately deals with the case according to law.
Why Section 365 Is Necessary
Criminal proceedings may sometimes continue before different Magistrates because of transfer, promotion, retirement, absence, or other administrative or judicial circumstances.
Requiring every witness to be examined again whenever the Magistrate changes could cause unnecessary delay and duplication of proceedings.
Section 365 provides procedural continuity by allowing the succeeding Magistrate to rely on evidence already recorded, while retaining the ability to recall witnesses where justice requires it.
Example
Suppose a Magistrate begins the trial of an accused person and records the evidence of several prosecution witnesses.
Before the trial is completed, another Magistrate takes over the case.
The succeeding Magistrate does not necessarily have to begin the trial again from the beginning. The evidence already recorded may be considered in accordance with Section 365.
However, if the succeeding Magistrate believes that a particular witness should be examined again in the interests of justice, that witness may be summoned and examined again before the succeeding Magistrate.
Fair Trial Consideration
Section 365 balances two competing considerations:
- continuity and efficiency of criminal proceedings, and
- the accused’s right to a fair adjudication.
Allowing the succeeding Magistrate to use evidence already recorded avoids unnecessary repetition. At the same time, the power to recall a witness where necessary provides a safeguard against prejudice arising from the change of Magistrate.
The provision therefore does not treat a change of Magistrate as automatically requiring the entire proceeding to restart.
Important Distinction: Section 365 and Fresh Trial
A change of Magistrate does not by itself mean that the entire inquiry or trial must begin afresh.
Section 365 provides a mechanism for continuing the existing proceeding on the basis of evidence already recorded, subject to the safeguards contained in the provision.
The objective is procedural continuity rather than automatic re-trial.
BNSS and CrPC
Section 365 of the BNSS corresponds to Section 326 of the Code of Criminal Procedure, 1973 (CrPC).
The provision substantially continues the earlier procedural framework concerning evidence recorded by a predecessor Magistrate.
The underlying principle remains that a succeeding Magistrate may act upon evidence recorded by the predecessor, while retaining the statutory ability to examine witnesses again where necessary in the interests of justice.
Common Confusions
Does a change of Magistrate automatically invalidate the evidence already recorded?
No.
Section 365 provides for continuation of the proceedings on the basis of evidence already recorded.
Must every witness be examined again?
No.
The succeeding Magistrate may rely on the evidence already recorded. A witness may be recalled where the Magistrate considers further examination necessary in the interests of justice.
Can the succeeding Magistrate complete the case?
Yes.
Section 365 provides the procedural mechanism through which the succeeding Magistrate can continue and complete the inquiry or trial.
Is Section 365 concerned with the guilt of the accused?
No.
The section primarily addresses the procedural effect of a change of Magistrate during an inquiry or trial and the use of evidence recorded by the earlier Magistrate.
Important BNSS Provisions
- Section 364: Procedure when Magistrate cannot pass sentence sufficiently severe.
- Section 365: Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.
- Section 366: Imprisonment of person convicted by Magistrate.
Topic at a Glance
- BNSS Section: Section 365
- Title: Conviction or commitment on evidence partly recorded by one Magistrate and partly by another
- Corresponding CrPC provision: Section 326
- Main issue: Change of Magistrate during an inquiry or trial
- Basic rule: Succeeding Magistrate may act on evidence already recorded by the earlier Magistrate
- Safeguard: Witness may be recalled where further examination is necessary in the interests of justice
- Purpose: Continuity of proceedings and avoidance of unnecessary repetition
- Nature: Procedural provision concerning evidence and change of Magistrate
Quick Revision
- Section 365 BNSS applies when evidence in an inquiry or trial has been recorded partly by one Magistrate and partly by another.
- It allows the succeeding Magistrate to continue the proceeding without automatically restarting the entire case.
- Evidence already recorded by the earlier Magistrate may be considered.
- A witness may be summoned and examined again where necessary in the interests of justice.
- The provision balances procedural efficiency with fairness in criminal proceedings.
- A change of Magistrate does not automatically invalidate the evidence already recorded.
- Section 365 BNSS corresponds to Section 326 CrPC.
- The provision concerns procedural continuity and the use of evidence recorded by a predecessor Magistrate.
Conclusion
Section 365 of the BNSS provides a mechanism for continuing a criminal inquiry or trial when the evidence has been recorded partly by one Magistrate and partly by another. It avoids unnecessary duplication while preserving judicial discretion to recall witnesses where further examination is necessary in the interests of justice. The provision thereby facilitates continuity of criminal proceedings without sacrificing the fairness of the trial.
