Section 361 BNSS: Procedure in Cases Which Magistrate Cannot Dispose of
Section 361 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides the procedure to be followed when, during an inquiry or trial, a Magistrate forms the view from the evidence that the case cannot properly be dealt with by that Magistrate.
Text of Section 361 BNSS
361. Procedure in cases which Magistrate cannot dispose of. - (1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption -
(a) that he has no jurisdiction to try the case or commit it for trial; or
(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district; or
(c) that the case should be tried by the Chief Judicial Magistrate,
he shall stay the proceedings and submit the case, with a brief report explaining its nature to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.
What Section 361 Means
The provision prevents a criminal case from continuing before a Magistrate who should not finally deal with it. Once the circumstances mentioned in sub-section (1) arise from the evidence, the Magistrate is required to stop further proceedings and submit the case in the manner prescribed by Section 361.
| Situation | The Magistrate considers that he has no jurisdiction, that another Magistrate in the district should try or commit the case, or that the Chief Judicial Magistrate should try it. |
|---|---|
| Immediate step | The Magistrate must stay the proceedings. |
| Case submission | The case is submitted with a brief report explaining its nature to the Chief Judicial Magistrate or to another Magistrate having jurisdiction as directed by the Chief Judicial Magistrate. |
| Power of receiving Magistrate | If empowered, the receiving Magistrate may try the case, refer it to a subordinate Magistrate having jurisdiction, or commit the accused for trial. |
When Section 361 Can Apply
Section 361 is attracted during an inquiry into an offence or during a trial before a Magistrate when the evidence gives rise to one of the statutory situations mentioned in clauses (a), (b) or (c) of sub-section (1).
- Lack of jurisdiction: the Magistrate concludes that he has no jurisdiction to try the case or commit it for trial.
- Another Magistrate should deal with the case: the matter should be tried or committed by another Magistrate in the same district.
- Chief Judicial Magistrate should try the case: the nature of the matter requires trial by the Chief Judicial Magistrate.
Procedure After the Magistrate Reaches That View
The Magistrate does not continue the trial merely because the proceedings have already begun. The provision directs the Magistrate to stay the proceedings and forward the case with a short report explaining its nature. This ensures that the question of the proper court or Magistrate is resolved before the matter proceeds further.
Powers After the Case Is Submitted
Under Section 361(2), the Magistrate receiving the case may act only if properly empowered. Depending on the circumstances, that Magistrate may:
- try the case himself;
- refer it to a subordinate Magistrate having jurisdiction; or
- commit the accused for trial.
Section 361 BNSS and the Earlier CrPC
Section 361 BNSS corresponds to Section 322 of the Code of Criminal Procedure, 1973, which carried the same subject heading and substantially the same procedure. For proceedings governed by the BNSS, Section 361 is the current provision to consult.
Official Legal Sources
For the authoritative text and current statutory status, refer to the India Code page for the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Ministry of Home Affairs - New Criminal Laws.
This page is intended as a general legal information resource. For application to a particular criminal proceeding, the complete statute, applicable notifications, judicial decisions and facts of the case should be considered.