Section 361 of BNSS, 2023 — Procedure in Cases Which Magistrate Cannot Dispose Of

Introduction

Section 361 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the situation where, during an inquiry or trial, a Magistrate finds that the case cannot properly be disposed of by that Magistrate because of lack of jurisdiction or because the case should be dealt with by another Magistrate or by the Chief Judicial Magistrate.

The provision requires the Magistrate to stay the proceedings and submit the case, along with a brief report explaining its nature, to the appropriate authority. The provision ensures that a criminal case is dealt with by the court having the necessary jurisdiction and authority.

Meaning of Section 361

Section 361 applies when evidence emerging during an inquiry or trial indicates that the Magistrate before whom the case is pending cannot properly dispose of it.

The difficulty may arise because:

• the Magistrate has no jurisdiction to try the case or commit it for trial;
• the case should be tried or committed for trial by another Magistrate in the same district; or
• the case should be tried by the Chief Judicial Magistrate.

In such circumstances, the Magistrate cannot continue with the proceedings as though he or she has jurisdiction. The proceedings must be stayed and the case submitted to the appropriate authority.

Statutory Basis

Section 361 of the BNSS, 2023 is titled “Procedure in cases which Magistrate cannot dispose of.”

The provision contains two sub-sections dealing with:

1. the circumstances requiring the Magistrate to stay proceedings and submit the case; and
2. the powers of the Magistrate to whom the case is submitted.

When Section 361 Applies

Section 361 operates during:

• an inquiry into an offence; or
• a trial before a Magistrate.

The provision becomes relevant when the evidence before the Magistrate warrants a presumption that the case cannot properly be dealt with by that Magistrate.

There are three specific situations contemplated by Section 361(1).

1. Magistrate Has No Jurisdiction

If the evidence indicates that the Magistrate has no jurisdiction either to try the case or to commit it for trial, the Magistrate must stay the proceedings.

The case must then be submitted to the Chief Judicial Magistrate or to another Magistrate having jurisdiction, as directed by the Chief Judicial Magistrate.

2. Case Should Be Handled by Another Magistrate

The second situation arises where the case should be tried or committed for trial by some other Magistrate in the same district.

The Magistrate conducting the inquiry or trial must not continue with the case merely because proceedings have already commenced before that court.

Instead, the proceedings must be stayed and the case submitted in accordance with Section 361.

3. Case Should Be Tried by the Chief Judicial Magistrate

The third situation arises where the evidence indicates that the case should be tried by the Chief Judicial Magistrate.

In such a situation, the Magistrate must stay the proceedings and submit the case, together with a brief report explaining its nature, to the Chief Judicial Magistrate.

Procedure Under Section 361

The procedure under Section 361 can be understood in the following stages.

Step 1: Evidence Comes Before the Magistrate

During an inquiry or trial, the Magistrate considers the evidence that has emerged in the proceedings.

Step 2: Magistrate Forms the Required Presumption

If the evidence warrants a presumption that the Magistrate does not have the required jurisdiction, or that another Magistrate or the Chief Judicial Magistrate should deal with the case, Section 361 becomes applicable.

Step 3: Proceedings Are Stayed

The Magistrate must stay the proceedings.

The Magistrate therefore does not continue the inquiry or trial after reaching the conclusion contemplated by Section 361.

Step 4: Case Is Submitted

The Magistrate submits the case to:

• the Chief Judicial Magistrate; or
• another Magistrate having jurisdiction, where the Chief Judicial Magistrate directs.

Step 5: Brief Report Is Submitted

The case must be accompanied by a brief report explaining the nature of the case.

This enables the authority receiving the case to understand why the original Magistrate could not dispose of the matter.

Powers of the Magistrate to Whom the Case Is Submitted

Section 361(2) provides that the Magistrate to whom the case is submitted may, if so empowered:

• try the case himself;
• refer the case to any Magistrate subordinate to him who has jurisdiction; or
• commit the accused for trial.

The receiving Magistrate therefore has different options depending upon the circumstances of the case and the authority conferred upon that Magistrate.

Important Features of Section 361

Jurisdiction Is Central

The primary concern of Section 361 is ensuring that the case is dealt with by a Magistrate having the necessary jurisdiction.

Proceedings Must Be Stayed

Once the conditions of Section 361(1) are satisfied, the Magistrate is required to stay the proceedings and submit the case in accordance with the provision.

Brief Report Is Required

The Magistrate must submit the case with a brief report explaining its nature.

Chief Judicial Magistrate Has an Important Role

The Chief Judicial Magistrate may receive the case directly or direct that it be submitted to another Magistrate having jurisdiction.

Receiving Magistrate Has Specified Options

Under Section 361(2), the Magistrate receiving the case may, if empowered, try it himself, refer it to a subordinate Magistrate having jurisdiction, or commit the accused for trial.

Example

Suppose a Magistrate is conducting an inquiry into an offence. During the proceedings, the evidence indicates that the Magistrate does not have jurisdiction to try the case or commit it for trial.

The Magistrate cannot simply continue the proceedings. The proceedings must be stayed, and the case must be submitted with a brief report to the Chief Judicial Magistrate or to another Magistrate having jurisdiction as directed by the Chief Judicial Magistrate.

The Magistrate receiving the case may then deal with it in accordance with Section 361(2), subject to the authority conferred upon him.

BNSS and CrPC

Section 361 of the BNSS corresponds to Section 322 of the Code of Criminal Procedure, 1973 (CrPC).

The substance of the provision has been carried forward under BNSS without a significant change in the underlying procedure. The main change is the renumbering of the provision from Section 322 of the CrPC to Section 361 of the BNSS.

Therefore, case law interpreting the corresponding CrPC provision may remain relevant where the statutory language and legal principle continue to be substantially the same.

Important Distinction: Section 361 and Section 362 of BNSS

Section 361 applies where the Magistrate cannot dispose of the case because of the circumstances specifically mentioned in Section 361, including lack of jurisdiction or the need for another Magistrate or the Chief Judicial Magistrate to deal with the case.

Section 362 deals with a different situation. It applies where, after commencement of an inquiry or trial, the Magistrate finds that the case ought to be tried by the Court of Session.

Thus, Section 361 primarily concerns the inability of the Magistrate to dispose of the case in the circumstances specified by that provision, whereas Section 362 specifically concerns commitment of a case to the Court of Session.

Common Confusion

Does Section 361 mean that the case is dismissed?

No.

Section 361 does not provide for dismissal of the case. It provides a procedural mechanism for transferring or committing the case to the appropriate Magistrate or authority when the original Magistrate cannot properly dispose of it.

Can the Magistrate continue the proceedings after finding that Section 361 applies?

No.

The Magistrate is required to stay the proceedings and submit the case in accordance with Section 361.

Is the case automatically transferred to another Magistrate?

Not necessarily.

The case is submitted to the Chief Judicial Magistrate or to such other Magistrate having jurisdiction as the Chief Judicial Magistrate directs. The receiving Magistrate may exercise the powers specified in Section 361(2), subject to being empowered to do so.

Topic at a Glance

• BNSS Section: Section 361
• Title: Procedure in cases which Magistrate cannot dispose of
• Corresponding CrPC provision: Section 322
• Core principle: A Magistrate who cannot properly dispose of a case must stay the proceedings and submit the case to the appropriate authority.
• Main grounds: Lack of jurisdiction, another Magistrate having jurisdiction, or the Chief Judicial Magistrate being required to try the case.
• Important authority: Chief Judicial Magistrate
• Possible action by receiving Magistrate: Try the case, refer it to a subordinate Magistrate having jurisdiction, or commit the accused for trial, if empowered.

Quick Revision

• Section 361 BNSS deals with cases which a Magistrate cannot dispose of.
• It applies during an inquiry or trial.
• The provision operates when evidence indicates that the Magistrate lacks jurisdiction or that another Magistrate or the Chief Judicial Magistrate should deal with the case.
• The Magistrate must stay the proceedings.
• The case must be submitted with a brief report explaining its nature.
• The case may be submitted to the Chief Judicial Magistrate or to another Magistrate having jurisdiction as directed by the Chief Judicial Magistrate.
• Under Section 361(2), the receiving Magistrate may, if empowered, try the case, refer it to a subordinate Magistrate having jurisdiction, or commit the accused for trial.
• Section 361 BNSS corresponds to Section 322 CrPC.
• The provision substantially continues the earlier CrPC framework.

ALSO READ: Section 360 – Withdrawal from prosecution

Conclusion

Section 361 of the BNSS ensures that a criminal proceeding is not continued before a Magistrate who lacks the necessary jurisdiction or authority to dispose of it. By requiring the proceedings to be stayed and the case to be submitted to the appropriate Magistrate or Chief Judicial Magistrate, the provision maintains procedural jurisdiction and prevents a case from being adjudicated by an incompetent forum.