Procedure when Magistrate cannot pass sentence sufficiently severe
Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with procedure when Magistrate cannot pass 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 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 se The Act came into force on 01 Jul 2024.
(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.
Section 364, The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Replaces a provision of the Code of Criminal Procedure
CRPC 325 Procedure when Magistrate cannot pass sentence sufficiently severe Text carried over almost unchanged 98%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Shiv Pal Singh Chouhan vs The State of Madhya Pradesh
Decided under Code of Criminal Procedure 325, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A Magistrate can forward a case to the Chief Judicial Magistrate under Section 325 CrPC only after hearing evidence for prosecution and defence and forming a reasoned opinion that the accused is guilty and deserves a punishment different in kind or more severe than what the Magistrate is empowered to inflict. The Magistrate cannot forward the case merely on the basis that the accused may deserve a heavier sentence without first hearing evidence and forming a reasoned opinion of guilt. The order forwarding the case must be a short but speaking and reasoned order referring to the evidence for prosecution and defence in brief. The opinion recorded by the Magistrate is not binding on the Chief Judicial Magistrate, who must pass a final judgment independently.
On this section: Procedure when Magistrate cannot pass sentence sufficiently severe - Magistrate must first hear evidence for prosecution and accused, form opinion that accused is guilty, and then opine that accused deserves punishment different in kind or more severe than Magistrate can inflict, before forwarding to Chief Judicial Magistrate
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Sadhu Ram Gainda vs State
Decided under Code of Criminal Procedure 325, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
An accused who has suffered nearly four years of judicial custody while awaiting trial, where the trial is progressing slowly with only a fraction of prosecution witnesses examined and is unlikely to conclude in the near future, may be granted bail notwithstanding serious charges and risk factors such as a co-accused being a proclaimed offender, provided stringent bail conditions are imposed to ensure appearance and prevent interference with the trial.
On this section: Referenced for determining maximum sentence that could be imposed, which is 7 years for the offenses charged
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 364
What have the courts held on Section 364 of the Bharatiya Nagarik Suraksha Sanhita?
Shiv Pal Singh Chouhan vs The State of Madhya Pradesh (20 Sep 2023) is the leading judgment on this section among those set out below, though it was decided under CRPC 325, which this section replaced -- the court never mentioned this Act: Procedure when Magistrate cannot pass sentence sufficiently severe - Magistrate must first hear evidence for prosecution and accused, form opinion that accused is guilty, and then opine that accused deserves punishment different in kind or more severe than Magistrate can inflict, before forwarding to Chief Judicial Magistrate. Another 1 judgment on this section is set out below. They run from 2005 to 2023.
How do I find court cases under Section 364 of the Bharatiya Nagarik Suraksha Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNSS 364, section 364 BNSS, section 364 of the Bharatiya Nagarik Suraksha Sanhita. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 2 reported judgments on this section are set out on this page, beginning with Shiv Pal Singh Chouhan vs The State of Madhya Pradesh (20 Sep 2023).
What should I read with Section 364 of the Bharatiya Nagarik Suraksha Sanhita, and has it changed?
Its own text turns on section 125 (Security for keeping peace on conviction), so none of them can safely be read on its own. 5 other provisions in this corpus refer back to it. It carries forward CrPC 325 (Procedure when Magistrate cannot pass sentence sufficiently severe), so the judgments decided under that provision are the case law on this one.
When did Section 364 of the Bharatiya Nagarik Suraksha Sanhita come into force?
Section 364 of the Bharatiya Nagarik Suraksha Sanhita, cited as BNSS 364, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 359. Compounding of offences1355 words
- 187. Procedure when investigation cannot be completed in twenty-four hours1122 words
- 2. Definitions956 words
- 243. Trial for more than one offence930 words
- 35. When police may arrest without warrant881 words
- 480. When bail may be taken in case of non-bailable offence823 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.