Code: Section 361 BNSS
(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.
Explanation of Section 361 BNSS
Section 361 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 outlines the procedure to be followed when a Magistrate realizes that they lack jurisdiction over a case. Instead of proceeding with an illegal trial, the Magistrate must stay the proceedings and refer the case to the appropriate authority.
Key Provisions
- When Can a Magistrate Stay Proceedings?
A Magistrate must stop the trial and refer the case if:- (a) Lack of jurisdiction – The Magistrate realizes they cannot try or commit the case.
- (b) Another Magistrate should handle the case – The case should be tried by a different Magistrate in the district.
- (c) The Chief Judicial Magistrate (CJM) should try the case – The seriousness of the case demands CJM’s intervention.
- What Happens After the Case is Submitted?
- The case is sent to the Chief Judicial Magistrate (CJM) with a brief report explaining why it should be transferred.
- The CJM or another competent Magistrate will decide whether to try the case or commit it to the Sessions Court.
Illustration
Example 1: Offence Beyond the Magistrate’s Jurisdiction
A Magistrate of the Second Class is handling a case of grievous hurt (Section 127 BNSS). However, evidence shows that the injury resulted in permanent disability, making it a Sessions triable offence. Since the Magistrate lacks the power to impose the required punishment, they stay the proceedings and refer the case to the Chief Judicial Magistrate (CJM).
Example 2: Case Assigned to the Wrong Magistrate
A theft case is mistakenly assigned to a Judicial Magistrate First Class (JMFC), but it should have been tried by the Metropolitan Magistrate due to territorial jurisdiction. The JMFC stays proceedings and sends the case to the CJM for reassignment.
Example 3: Murder Case Filed Before a Magistrate
An accused is charged with murder (Section 103 BNSS) before a Magistrate First Class. Since the Magistrate cannot try murder cases, they refer the case to the Sessions Court via the CJM.
Common Questions and Answers on Section 361 BNSS
1. What should a Magistrate do if they realize they lack jurisdiction?
The Magistrate must stay the proceedings and refer the case to the Chief Judicial Magistrate (CJM) or another competent Magistrate.
2. Can a Magistrate still record evidence after realizing they lack jurisdiction?
No, once the Magistrate determines they lack jurisdiction, they must immediately stop the trial and refer the case.
3. Can the Chief Judicial Magistrate take over the case directly?
Yes, the CJM can decide to try the case themselves or assign it to a subordinate Magistrate with proper jurisdiction.
4. What happens if a case is wrongly tried by a Magistrate without jurisdiction?
Any judgment passed by a Magistrate without jurisdiction is invalid, and the accused can challenge it in a higher court.
5. Is this provision necessary for fair trials?
Yes, ensuring that cases are tried by the correct court prevents miscarriages of justice and ensures appropriate punishment is imposed.
Conclusion
Section 361 BNSS prevents Magistrates from overstepping their jurisdiction and ensures that cases are tried by the appropriate authority. If a Magistrate finds that they lack the power to try a case, they must refer it to the Chief Judicial Magistrate or another competent court. This maintains legal fairness and procedural accuracy in criminal trials.
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