Section 363 of BNSS, 2023 — Trial of Persons Previously Convicted of Offences Against Coinage, Stamp-Law or Property

Introduction

Section 363 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a special procedure for dealing with a person who has previously been convicted of certain serious offences and is subsequently accused of another qualifying offence.

The provision applies where the earlier conviction and the subsequent accusation relate to offences punishable under Chapter X or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023, with imprisonment for a term of three years or more.

Where the Magistrate finds sufficient ground for presuming that the accused has committed the subsequent offence, the case is ordinarily required to be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate has the necessary competence and considers that an adequate sentence can be imposed by that Magistrate.

Meaning of Section 363

Section 363 deals with the procedural treatment of certain repeat offenders.

The provision is attracted when:

• the accused has previously been convicted of a qualifying offence;
• the previous offence was punishable with imprisonment for three years or more;
• the previous offence falls under Chapter X or Chapter XVII of the BNS;
• the accused is again accused of an offence under either of those Chapters;
• the subsequent offence is also punishable with imprisonment for three years or more; and
• the Magistrate is satisfied that there is ground for presuming that the accused committed the subsequent offence.

The purpose is to ensure that a qualifying repeat offender is ordinarily tried by a higher judicial forum capable of dealing with the seriousness of the case and the possible sentence.

Statutory Basis

Section 363 of the BNSS contains two sub-sections.

Section 363(1) deals with the main rule concerning a previously convicted person who is again accused of a qualifying offence.

Section 363(2) deals with other persons who are jointly accused with that person in the same inquiry or trial.

Essential Elements

1. Previous Conviction

The accused must have previously been convicted of an offence punishable under Chapter X or Chapter XVII of the BNS.

The previous offence must carry imprisonment for a term of three years or upwards.

A mere previous accusation is not sufficient. Section 363 specifically requires a previous conviction.

2. Subsequent Accusation

The person must again be accused of an offence punishable under either Chapter X or Chapter XVII of the BNS.

The subsequent offence must also be punishable with imprisonment for a term of three years or upwards.

Thus, both the previous conviction and the subsequent accusation must satisfy the statutory requirements.

3. Magistrate Must Find Ground for Presuming the Offence

The Magistrate before whom the present case is pending must be satisfied that there is ground for presuming that the accused has committed the subsequent offence.

Section 363 therefore does not operate merely because the accused has a previous conviction.

There must also be sufficient ground, at the relevant procedural stage, for presuming that the accused has committed the new offence.

4. Ordinary Rule of Sending or Committing the Case

Once the statutory conditions are satisfied, the accused shall be:

• sent for trial to the Chief Judicial Magistrate; or
• committed to the Court of Session.

This is the general rule under Section 363(1).

5. Exception Where the Magistrate Can Adequately Deal With the Case

There is an important exception.

The Magistrate need not send the accused to the Chief Judicial Magistrate or commit the case to the Court of Session if:

• the Magistrate is competent to try the case; and
• the Magistrate is of the opinion that he or she can pass an adequate sentence if the accused is convicted.

Therefore, the provision does not make commitment to a higher court automatic in every qualifying case.

Procedure Under Section 363

Step 1: Previous Conviction Is Established

The accused must have a previous conviction for a qualifying offence under Chapter X or Chapter XVII of the BNS carrying imprisonment of three years or more.

Step 2: A New Qualifying Offence Is Alleged

The accused is again accused of an offence under either of those Chapters, also carrying imprisonment of three years or more.

Step 3: Magistrate Considers the Present Case

The Magistrate before whom the case is pending considers whether there is ground for presuming that the accused has committed the new offence.

Step 4: Magistrate Determines the Appropriate Forum

If the statutory conditions are satisfied, the Magistrate must ordinarily send the accused for trial to the Chief Judicial Magistrate or commit the accused to the Court of Session.

Step 5: Magistrate May Retain the Case in the Statutory Exception

If the Magistrate is competent to try the case and believes that an adequate sentence can be imposed by that Magistrate, the case may be dealt with by the Magistrate himself or herself.

Jointly Accused Persons

Section 363(2) addresses the situation where the previously convicted person is being tried jointly with another accused.

Where the person covered by Section 363(1) is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, any other person jointly accused in the same inquiry or trial shall also be similarly sent or committed.

There is, however, an exception.

The Magistrate may discharge the other accused person under:

• Section 262; or
• Section 268,

as applicable.

Therefore, the procedural treatment of the jointly accused person generally follows that of the repeat offender unless the Magistrate lawfully discharges that person under the applicable provision.

Why Section 363 Is Necessary

Section 363 recognises that a case involving a person with a qualifying previous conviction may require consideration by a higher judicial forum, particularly where the possible punishment is substantial.

The provision therefore creates a special procedural mechanism for qualifying repeat offenders while preserving an exception where the Magistrate has jurisdiction and considers that an adequate sentence can be imposed.

Example

Suppose A was previously convicted of an offence under Chapter XVII of the BNS punishable with imprisonment of three years or more.

A is subsequently accused of another offence falling under Chapter XVII, which is also punishable with imprisonment of three years or more.

If the Magistrate before whom the new case is pending is satisfied that there is ground for presuming that A committed the new offence, Section 363 applies.

Ordinarily, A must be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session.

However, if the Magistrate is competent to try the case and considers that an adequate sentence can be imposed by that Magistrate if A is convicted, the Magistrate may retain the case.

Important Distinction: Previous Conviction and Previous Accusation

Section 363 requires a previous conviction, not merely a previous accusation or pending criminal case.

A person who has merely been accused of an earlier offence but has not been convicted does not satisfy this particular requirement of Section 363.

The provision therefore treats a proven previous conviction differently from a mere allegation of earlier criminal conduct.

Important Distinction: Section 363 and Ordinary Trial Procedure

Section 363 does not itself create a new offence or increase the punishment for the subsequent offence.

It primarily determines the procedural course of the case when the statutory conditions concerning a previous conviction and a subsequent qualifying accusation are satisfied.

The substantive offences themselves are governed by the BNS, while Section 363 provides the relevant procedural mechanism under the BNSS.

BNSS and CrPC

Section 363 of the BNSS corresponds to Section 324 of the Code of Criminal Procedure, 1973 (CrPC).

The provision substantially continues the earlier CrPC framework.

The principal structural change is the replacement of references to offences under the IPC with references to the corresponding Chapters of the BNS.

Under Section 363 BNSS, the relevant previous and subsequent offences are those punishable under Chapter X or Chapter XVII of the BNS with imprisonment for three years or more.

The procedural principle remains substantially the same: a qualifying person with a previous conviction who is again accused of a qualifying offence is ordinarily sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, subject to the statutory exception for a competent Magistrate who considers that an adequate sentence can be imposed.

Relationship with BNS

Section 363 is directly connected with the BNS because the section identifies the categories of offences by reference to Chapter X and Chapter XVII of the BNS.

The BNS deals with substantive criminal offences, while the BNSS provides the procedure for dealing with the accused.

Accordingly, the BNS determines the relevant offences and their punishments, while Section 363 BNSS determines the special procedural consequence of a qualifying previous conviction followed by a qualifying subsequent accusation.

Common Confusions

Is a previous accusation enough to invoke Section 363?

No.

The person must have previously been convicted of a qualifying offence.

Must both offences carry imprisonment of three years or more?

Yes.

The previous offence and the subsequent offence must fall within the specified Chapters and be punishable with imprisonment for a term of three years or upwards.

Is the case always sent to the Court of Session?

No.

The case may be sent to the Chief Judicial Magistrate or committed to the Court of Session.

Further, the Magistrate may retain the case where the Magistrate is competent to try it and considers that an adequate sentence can be passed if the accused is convicted.

What happens to a jointly accused person?

Under Section 363(2), a person jointly accused with the qualifying repeat offender is similarly sent or committed, unless the Magistrate discharges that person under Section 262 or Section 268, as applicable.

Important BNSS Provisions

• Section 262: When accused shall be discharged.
• Section 268: When accused shall be discharged.
• Section 361: Procedure in cases which Magistrate cannot dispose of.
• Section 362: Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.
• Section 363: Trial of persons previously convicted of offences against coinage, stamp-law or property.
• Section 364: Procedure when Magistrate cannot pass sentence sufficiently severe.

Topic at a Glance

• BNSS Section: Section 363
• Title: Trial of persons previously convicted of offences against coinage, stamp-law or property
• Corresponding CrPC provision: Section 324
• Previous requirement: Conviction for a qualifying offence under Chapter X or Chapter XVII of BNS
• Minimum punishment requirement: Three years or upwards
• Subsequent requirement: Accused again of a qualifying offence under either Chapter X or Chapter XVII
• Judicial requirement: Magistrate must find ground for presuming commission of the subsequent offence
• Ordinary consequence: Trial before the Chief Judicial Magistrate or commitment to the Court of Session
• Exception: Competent Magistrate may retain the case if an adequate sentence can be imposed
• Joint accused: Generally sent or committed along with the qualifying accused, subject to discharge under Section 262 or Section 268

Quick Revision

• Section 363 BNSS deals with a person previously convicted of specified offences who is again accused of a qualifying offence.
• The previous conviction must relate to an offence under Chapter X or Chapter XVII of BNS.
• The previous offence must be punishable with imprisonment for three years or more.
• The subsequent offence must also fall under either of those Chapters and carry imprisonment of three years or more.
• The Magistrate must be satisfied that there is ground for presuming that the accused committed the subsequent offence.
• The ordinary rule is sending the accused for trial to the Chief Judicial Magistrate or committing the accused to the Court of Session.
• The Magistrate may retain the case if competent to try it and satisfied that an adequate sentence can be imposed.
• Jointly accused persons are ordinarily sent or committed in the same manner.
• A jointly accused person may be discharged under Section 262 or Section 268, as applicable.
• Section 363 BNSS corresponds to Section 324 CrPC.
• The provision primarily continues the earlier procedural framework while replacing IPC references with the relevant BNS framework.

ALSO READ: Section 362 – Procedure when after commencement of inquiry or trial, Magistrate finds case should be committed

Conclusion

Section 363 of the BNSS establishes a special procedural rule for qualifying repeat offenders. Where a person with a relevant previous conviction is again accused of a sufficiently serious offence falling within the specified BNS Chapters, the case is ordinarily placed before the Chief Judicial Magistrate or the Court of Session. At the same time, the provision allows a competent Magistrate to retain the case where an adequate sentence can be imposed. Section 363 therefore balances the need for appropriate judicial treatment of repeat offenders with the existing jurisdiction and sentencing powers of Magistrates.