Section 364 of BNSS, 2023 — Procedure When Magistrate Cannot Pass Sentence Sufficiently Severe

Introduction

Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a situation where a Magistrate finds an accused person guilty, but considers that the punishment which the Magistrate is legally competent to impose is not sufficiently severe for the circumstances of the case.

Instead of imposing an inadequate sentence, the Magistrate must follow the procedure prescribed under this section. The Magistrate records the opinion that the accused deserves a more severe punishment and submits the proceedings to the Chief Judicial Magistrate.

The provision ensures that the limitations on a Magistrate’s sentencing powers do not prevent the court from imposing an appropriate sentence in a case requiring a punishment beyond its authority.

Meaning of Section 364

Section 364 applies when:

• a Magistrate finds an accused guilty;
• the Magistrate has jurisdiction to try the case;
• the Magistrate considers that the accused deserves a sentence more severe than the Magistrate can legally impose.

In such circumstances, the Magistrate does not simply impose the maximum sentence available within the Magistrate’s powers.

Instead, the Magistrate forwards the case to the Chief Judicial Magistrate, together with the accused, and records the reasons for the opinion that a more severe sentence should be imposed.

Statutory Basis

Section 364 of the BNSS provides the procedure to be followed when a Magistrate considers that the sentence which can be imposed by that Magistrate is insufficiently severe.

The provision operates at the sentencing stage, after the Magistrate has found the accused guilty.

The important point is that Section 364 does not concern the determination of guilt itself. It concerns the appropriate sentence after conviction.

Essential Elements

1. Magistrate Must Find the Accused Guilty

The procedure under Section 364 arises only after the Magistrate has found the accused guilty.

Therefore, the provision does not apply merely because the Magistrate believes that a severe punishment may eventually be necessary.

There must first be a finding of guilt.

2. Magistrate Must Have Jurisdiction to Try the Case

The Magistrate must be competent to try the case.

Section 364 therefore operates differently from a situation where the Magistrate has no jurisdiction over the case.

The issue under Section 364 is specifically the extent of the Magistrate’s sentencing power.

3. Magistrate Considers the Available Sentence Insufficient

After finding the accused guilty, the Magistrate may conclude that the punishment which the Magistrate is competent to impose is not sufficiently severe.

The Magistrate must form this opinion based on the circumstances of the case.

4. Magistrate Records the Opinion

The Magistrate must record the reasons for the opinion that a more severe sentence should be imposed.

This ensures that the decision to send the case to the Chief Judicial Magistrate is supported by recorded judicial reasoning.

5. Proceedings Are Submitted to the Chief Judicial Magistrate

The Magistrate sends the proceedings to the Chief Judicial Magistrate.

The accused is also forwarded to the Chief Judicial Magistrate.

The Chief Judicial Magistrate can then deal with the sentencing question in accordance with the law.

Procedure Under Section 364

Step 1: Trial Before Magistrate

The case is tried by a Magistrate having jurisdiction.

Step 2: Finding of Guilt

The Magistrate finds the accused guilty.

Step 3: Consideration of Sentence

The Magistrate considers the punishment that can legally be imposed within the Magistrate’s sentencing powers.

Step 4: Magistrate Finds the Sentence Insufficient

If the Magistrate believes that the accused deserves a more severe sentence than the Magistrate can impose, Section 364 becomes applicable.

Step 5: Reasons Are Recorded

The Magistrate records the reasons for forming the opinion that a more severe sentence is necessary.

Step 6: Proceedings and Accused Are Forwarded

The proceedings are submitted to the Chief Judicial Magistrate, and the accused is forwarded to that Magistrate.

Step 7: Chief Judicial Magistrate Deals With the Case

The Chief Judicial Magistrate considers the case and exercises the powers available under the BNSS in relation to the sentence.

Why Section 364 Is Necessary

Magistrates have statutory limits on the sentences they can impose. In some cases, however, the facts may justify a punishment exceeding those limits.

Section 364 prevents two problems:

• the Magistrate imposing a sentence that is inadequate merely because of the Magistrate’s limited sentencing jurisdiction; and
• the accused receiving a punishment that does not adequately reflect the seriousness of the offence.

The provision therefore provides a mechanism through which the case can be placed before the Chief Judicial Magistrate when a more severe sentence is considered necessary.

Example

Suppose a Magistrate conducts a trial and finds A guilty of an offence.

The Magistrate has the legal authority to impose a particular maximum sentence. After considering the facts and circumstances, however, the Magistrate concludes that A deserves a punishment more severe than the Magistrate is competent to impose.

The Magistrate should not impose a sentence beyond the Magistrate’s statutory power.

Instead, the Magistrate records the reasons for believing that a more severe sentence is required and submits the proceedings, along with A, to the Chief Judicial Magistrate.

The Chief Judicial Magistrate can then deal with the sentencing issue according to the powers conferred by law.

Important Distinction: Section 364 and Section 363

Section 363 deals with a special procedure for persons previously convicted of specified offences who are again accused of qualifying offences.

Section 364 deals with a different situation: the accused has already been found guilty, but the Magistrate considers that the sentence which the Magistrate can legally impose is not sufficiently severe.

Therefore:

• Section 363: Special procedure concerning qualifying repeat offenders.
• Section 364: Procedure when the Magistrate’s sentencing power is insufficient for the case.

Important Distinction: Jurisdiction to Try and Power to Sentence

A Magistrate may have jurisdiction to try a particular offence but may not have sufficient power to impose the sentence which the Magistrate considers appropriate.

Section 364 addresses this distinction.

The Magistrate does not lose jurisdiction over the trial merely because the appropriate sentence may exceed the Magistrate’s sentencing power. Instead, after conviction, the statutory procedure for referring the matter to the Chief Judicial Magistrate is followed.

BNSS and CrPC

Section 364 of the BNSS corresponds to Section 325 of the Code of Criminal Procedure, 1973 (CrPC).

The provision substantially continues the earlier procedural framework.

The underlying principle remains that when a Magistrate finds an accused guilty but considers that a more severe sentence is warranted than the Magistrate is competent to impose, the case is submitted to the Chief Judicial Magistrate with the reasons for that opinion.

Common Confusions

Can a Magistrate impose a sentence beyond the Magistrate’s legal power?

No.

A Magistrate cannot exceed the sentencing authority granted by law.

Section 364 provides the procedure to be followed when a more severe sentence is considered necessary.

Does Section 364 apply before conviction?

No.

The provision operates after the Magistrate has found the accused guilty.

Does the Magistrate simply dismiss the case if the available sentence is insufficient?

No.

The proceedings are submitted to the Chief Judicial Magistrate in accordance with Section 364.

Is Section 364 about lack of jurisdiction to try the offence?

No.

The issue is not necessarily the Magistrate’s jurisdiction to try the offence. The issue is that the sentence which the Magistrate is competent to impose is considered insufficiently severe.

Important BNSS Provisions

• 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.
• Section 365: Conviction or commitment of accused after proceedings under Section 364.
• Section 366: Imprisonment of persons convicted under Section 364.

Topic at a Glance

• BNSS Section: Section 364
• Title: Procedure when Magistrate cannot pass sentence sufficiently severe
• Corresponding CrPC provision: Section 325
• Stage: After finding the accused guilty
• Core issue: Magistrate considers that the sentence within the Magistrate’s power is insufficiently severe
• Requirement: Magistrate records reasons for requiring a more severe sentence
• Action: Proceedings and accused are submitted to the Chief Judicial Magistrate
• Purpose: To ensure that sentencing limitations of the Magistrate do not result in an inadequate punishment

Quick Revision

• Section 364 BNSS applies after the Magistrate finds the accused guilty.
• The Magistrate must have jurisdiction to try the case.
• The Magistrate must consider that a more severe sentence is required than the Magistrate is competent to impose.
• The Magistrate records the reasons for that opinion.
• The proceedings are submitted to the Chief Judicial Magistrate.
• The accused is also forwarded to the Chief Judicial Magistrate.
• The provision does not permit a Magistrate to exceed the Magistrate’s statutory sentencing power.
• Section 364 concerns sentencing authority, not the Magistrate’s basic jurisdiction to conduct the trial.
• Section 364 BNSS corresponds to Section 325 CrPC.

ALSO READ: Section 363 – Trial of persons previously convicted of offences against coinage, stamp-law or property

Conclusion

Section 364 of the BNSS provides a mechanism for dealing with cases where a Magistrate has found an accused guilty but considers that the punishment warranted by the circumstances exceeds the Magistrate’s sentencing authority. By requiring the proceedings and accused to be placed before the Chief Judicial Magistrate with recorded reasons, the provision ensures that the limits of a Magistrate’s sentencing power do not prevent consideration of a more appropriate sentence.