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

Section 363 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) lays down a special trial-routing rule for an accused who has a qualifying previous conviction and is again accused of a sufficiently serious offence under specified Chapters of the Bharatiya Nyaya Sanhita, 2023 (BNS).

Current legal position: The BNSS is Act 46 of 2023. Its relevant provisions came into force on 1 July 2024. Section 363 should therefore be read with the Bharatiya Nyaya Sanhita, 2023 and the connected BNSS provisions referred to in the section.

Text of Section 363, Bharatiya Nagarik Suraksha Sanhita, 2023

363. Trial of persons previously convicted of offences against coinage, stamp-law or property.

(1) Where a person, having been convicted of an offence punishable under Chapter X or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023, with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted.

(2) When any person is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session under sub-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly sent or committed, unless the Magistrate discharges such other person under section 262 or section 268, as the case may be.

Meaning and Scope of Section 363 BNSS

Section 363 is not a provision creating a separate offence. It is a procedural provision dealing with the court before which a qualifying repeat accused is to be tried. The rule is triggered only when the statutory conditions relating to the previous conviction, the new accusation, the relevant BNS Chapters and the prescribed level of punishment are satisfied.

Previous conviction	The person must previously have been convicted of an offence punishable under BNS Chapter X or Chapter XVII with imprisonment for three years or more.
Fresh accusation	The person must again be accused of an offence under either of those Chapters that is punishable with imprisonment for three years or more.
Magistrate's assessment	The Magistrate must be satisfied that there is ground for presuming that the accused has committed the fresh offence.
Ordinary consequence	The accused is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session.
Exception	The Magistrate may retain the case if competent to try it and satisfied that an adequate sentence can be passed in the event of conviction.
Jointly accused persons	Co-accused in the same inquiry or trial ordinarily follow the same route, subject to discharge under Section 262 or Section 268, as applicable.

What are BNS Chapter X and Chapter XVII?

BNS Chapter X - Offences Relating to Coin, Currency-Notes, Bank-Notes and Government Stamps

Chapter X of the Bharatiya Nyaya Sanhita, 2023 deals with offences relating to coin, currency-notes, bank-notes and Government stamps. It includes offences such as counterfeiting and specified dealings with forged or counterfeit coin, stamps or notes. For Section 363 BNSS, the particular offence must also satisfy the statutory punishment threshold of imprisonment for three years or more.

BNS Chapter XVII - Offences Against Property

Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 deals with offences against property. It covers a broad group of property offences. Section 363 does not apply merely because an offence falls somewhere in Chapter XVII; the previous conviction and the fresh alleged offence must each meet the punishment threshold stated in Section 363.

When Does the Magistrate Send or Commit the Accused?

Once the requirements of sub-section (1) are fulfilled and the Magistrate is satisfied that there is ground for presuming commission of the fresh qualifying offence, the provision directs the Magistrate to send the accused for trial to the Chief Judicial Magistrate or commit the accused to the Court of Session. The statutory exception applies where the Magistrate is competent to try the case and considers that an adequate sentence can be passed if the accused is convicted.

The expression "ground for presuming" indicates that Section 363 operates at the procedural stage contemplated by the statute. It does not dispense with the prosecution's obligation to prove the charge at trial, and it does not itself amount to a finding of guilt.

Effect on a Jointly Accused Person

Sub-section (2) addresses cases in which another person is jointly accused with the repeat accused in the same inquiry or trial. Where the principal accused is sent to the Chief Judicial Magistrate or committed to the Court of Session under Section 363(1), the jointly accused person is ordinarily sent or committed in the same manner.

However, Section 363(2) expressly preserves the Magistrate's power to discharge the jointly accused person under Section 262 BNSS or Section 268 BNSS, depending on the type and stage of the warrant case.

Related Discharge Provisions: Sections 262 and 268 BNSS

Section 262 BNSS concerns discharge in a warrant case instituted on a police report. It permits an accused to seek discharge and requires discharge where, after the statutory consideration and hearing, the Magistrate considers the charge to be groundless.

Section 268 BNSS concerns discharge in a warrant case instituted otherwise than on a police report. It provides for discharge where the evidence does not make out a case which, if unrebutted, would warrant conviction, and also preserves discharge at an earlier stage where the charge is groundless, subject to reasons being recorded.

Key Requirements in Practical Terms

A previous conviction by itself is not enough.
The previous offence must fall under BNS Chapter X or Chapter XVII and meet the three-year-or-more punishment threshold.
The fresh alleged offence must also fall under one of those Chapters and meet the same punishment threshold.
The Magistrate must reach the statutory satisfaction that there is ground for presuming commission of the fresh offence.
The Magistrate must then determine whether the case should be sent to the Chief Judicial Magistrate or committed to the Court of Session, unless the statutory exception permits the Magistrate to retain the case.
The procedural position of a co-accused must be considered under sub-section (2), including any applicable discharge provision.

Legal note: The precise court, procedure and consequences in an individual case depend on the offence charged, the punishment prescribed by the BNS, the nature of the earlier conviction, the stage of proceedings and other applicable provisions of the BNSS. The bare statutory text and official notifications should be checked for case-specific use.

Official Legal Sources

For authoritative text, refer to the Government of India sources linked in the sidebar, including the Ministry of Home Affairs page for the new criminal laws and the India Code publications of the BNSS and BNS.

Related BNSS Sections

Section 363 forms part of the procedural sequence dealing with matters that may require a case to be handled by a court with appropriate jurisdiction or sentencing power. The adjacent provisions can be useful for understanding the surrounding statutory scheme.