Code: Section 363 BNSS
(1) Where a person, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023, with imprisonment for a term of three years or more, is again accused of any offence punishable under either of those Chapters with three years or more of imprisonment, 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 (CJM), or
- Committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he can pass an adequate sentence if the accused is convicted.
(2) When any person is sent for trial to the Chief Judicial Magistrate (CJM) 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 BNSS or Section 268 BNSS, as the case may be.
Explanation of Section 363 BNSS
Section 363 deals with repeat offenders who have previous convictions under Chapter XII or Chapter XVII of the Bharatiya Nyaya Sanhita (BNS), 2023, and are again accused of a similar crime. These repeat offenders pose a greater risk, and the law ensures they are tried in a higher court with greater sentencing powers.
Key Provisions
- Who Does This Apply To?
- Individuals who have already been convicted at least once under:
- Chapter XII (Offenses related to forgery, fraud, counterfeiting, etc.).
- Chapter XVII (Offenses against property, such as theft, robbery, dacoity, cheating, etc.).
- The new accusation must also be for an offence under Chapter XII or Chapter XVII and must carry a minimum punishment of three years or more.
- Individuals who have already been convicted at least once under:
- Jurisdiction for Trial
- If the Magistrate believes the offence has been committed, they must:
- Send the case to the Chief Judicial Magistrate (CJM), or
- Commit the case to the Court of Session if the punishment is severe.
- However, if the Magistrate has the legal authority to try the case and pass an appropriate sentence, they may conduct the trial themselves.
- If the Magistrate believes the offence has been committed, they must:
- Impact on Jointly Accused Persons
- If other people are jointly accused in the same trial, they too must be sent or committed to the higher court, unless:
- The Magistrate finds them not guilty and discharges them under:
- Section 262 BNSS (Discharge of the accused when there is no sufficient evidence).
- Section 268 BNSS (Magistrate’s power to discharge the accused at any stage).
- The Magistrate finds them not guilty and discharges them under:
- If other people are jointly accused in the same trial, they too must be sent or committed to the higher court, unless:
Illustration
Example 1: Repeat Offender in a Fraud Case
Ramesh was convicted in 2020 for forgery (Section 70 BNSS) and sentenced to four years in prison. After being released, he is again accused of forgery in 2024. Since this is his second offence under Chapter XII, and the punishment is more than three years, the Magistrate commits his case to the Court of Session for trial.
Example 2: Jointly Accused in a Theft Case
Aman and Suraj were caught in a theft case (Chapter XVII offence). Aman has a past conviction for theft, but Suraj does not. Since Aman is a repeat offender, the Magistrate sends his case to the Chief Judicial Magistrate. However, the Magistrate finds that there is no sufficient evidence against Suraj and discharges him under Section 262 BNSS.
Example 3: Magistrate Conducts the Trial
A Magistrate of First Class is handling a repeat fraud case, but since the punishment is not very severe, they decide that they have the power to conduct the trial and impose an adequate sentence. The case does not need to be sent to the CJM or Court of Session.
Common Questions and Answers on Section 363 BNSS
1. Who qualifies as a repeat offender under this section?
Any person previously convicted under Chapter XII (Forgery & Fraud) or Chapter XVII (Property Offenses) and is again accused of a crime under the same chapters, with a punishment of three years or more.
2. Does this apply if the previous conviction was for less than three years?
No, both the previous conviction and the new accusation must involve offences punishable with at least three years of imprisonment.
3. Who decides whether the case goes to the CJM or Court of Session?
The Magistrate handling the case will decide if they can pass an adequate sentence. If not, they will send the case to the CJM or Court of Session.
4. What happens if multiple people are accused in the same case?
If one accused is a repeat offender, all accused must be sent together to the CJM or Court of Session, unless the Magistrate discharges the others under Section 262 or Section 268 BNSS.
5. Can the Magistrate try the case if they have sentencing power?
Yes, if the Magistrate is legally empowered to pass a suitable sentence, they can handle the trial themselves.
Conclusion
Section 363 BNSS is designed to ensure stricter trials for repeat offenders involved in forgery, fraud, theft, and other property crimes. The higher sentencing authority of the Chief Judicial Magistrate or Court of Session ensures that habitual criminals do not escape with lenient punishments.
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