Bharatiya Nagarik Suraksha Sanhita, 2023
Section 365 BNSS: Evidence Partly Recorded by One Judge or Magistrate and Partly by Another
Section 365 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with continuity of an inquiry or trial when a Judge or Magistrate who recorded all or part of the evidence ceases to exercise jurisdiction and is succeeded by another Judge or Magistrate.
What Section 365 BNSS provides
The provision permits the succeeding Judge or Magistrate to continue the proceeding on the basis of evidence already recorded by the predecessor. The successor may rely entirely on that earlier evidence or may act on evidence partly recorded by the predecessor and partly recorded after taking over the case.
At the same time, the section protects the interests of justice by allowing the succeeding Judge or Magistrate to re-summon a witness whose evidence has already been recorded if further examination is considered necessary.
Text of Section 365 BNSS
365. (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Sanhita from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 361 or in which proceedings have been submitted to a superior Magistrate under section 364.
Meaning and legal effect
- Continuity of proceedings: A change of Judge or Magistrate does not automatically require evidence already recorded to be recorded again.
- Use of predecessor's evidence: The successor may act on the evidence recorded by the predecessor and may continue recording the remaining evidence.
- Recall of witnesses: If required in the interests of justice, a witness already examined may be re-summoned for further examination, cross-examination or re-examination as permitted by the court.
- Transferred cases: A transfer from one competent Judge or Magistrate to another is treated as succession for the purpose of this provision.
- Express exclusions: Section 365 does not apply to summary trials or the specific situations referred to in sub-section (3).
Why Section 365 is important
The provision is intended to avoid unnecessary repetition of evidence merely because the judicial officer handling the case changes. It balances procedural continuity with fairness by preserving the succeeding court's power to recall a witness where further examination is necessary in the interests of justice.
Corresponding provision under the Code of Criminal Procedure, 1973
Section 365 BNSS substantially corresponds to section 326 of the Code of Criminal Procedure, 1973, which dealt with conviction or commitment on evidence partly recorded by one Magistrate and partly by another.
Official text and source
For the authoritative statutory text, refer to the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code and the Ministry of Home Affairs - New Criminal Laws.