Criminal procedure | India

Section 323 CrPC: When a Magistrate Must Commit a Case to the Court of Session

Section 323 of the Code of Criminal Procedure, 1973 deals with a Magistrate discovering during an inquiry or trial that a case ought to be tried by the Court of Session. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 362.

Current legal position: The BNSS came into force on 1 July 2024. Section 362 is the corresponding provision for proceedings governed by the BNSS. For proceedings already pending when the BNSS commenced, the savings provision in Section 531 must be considered.

Meaning and purpose of Section 323 CrPC

Section 323 provides a mechanism for moving a criminal case from a Magistrate to the Court of Session after the inquiry or trial has begun. The Magistrate need not continue with a case that, on the material before the court, ought to be tried by the Sessions Court. The provision can operate at any stage before the Magistrate signs the judgment.

Text of Section 323, Code of Criminal Procedure, 1973

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

The reference to Chapter XVIII was inserted by Act 45 of 1978, Section 26, with effect from 18 December 1978.

Section 362 BNSS, 2023: Corresponding current provision

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XIX shall apply to the commitment so made.

The principal mechanism remains the same: the Magistrate must commit the case when satisfied that it ought to be tried by the Court of Session. The BNSS refers to Chapter XIX for trial before a Court of Session, rather than Chapter XVIII under the CrPC.

When can the Magistrate commit the case?

  1. An inquiry or trial is already before a Magistrate. The provision addresses a case in progress, not merely an initial classification of offences.
  2. The case ought to be tried by the Court of Session. The Magistrate reaches this conclusion from the case and material before the court.
  3. The judgment has not been signed. The power is available at any stage before that point.
  4. Committal is required. Once the statutory condition is met, the provision uses the mandatory word "shall".

Procedure and related provisions

The Magistrate commits the case under the applicable committal provisions. Section 232 BNSS addresses commitment of cases involving offences exclusively triable by the Court of Session, including forwarding the record and notifying the Public Prosecutor. Section 362 addresses the distinct situation where the need for a Sessions trial emerges during an inquiry or trial before a Magistrate.

Section 361 BNSS (corresponding to Section 322 CrPC) deals with cases a Magistrate cannot dispose of because of jurisdiction or the need for another Magistrate to deal with the case. It should not be confused with committal to the Court of Session under Section 362.

Practical illustration

Suppose an inquiry or trial begins before a Magistrate, but evidence later indicates that the case ought to be tried by the Court of Session. Before signing the judgment, the Magistrate must use the applicable committal procedure rather than decide the matter as a Magistrate's trial. Whether committal is warranted depends on the offences, the record and the applicable procedural law.

Official legal sources

Frequently asked questions

What is the equivalent of Section 323 CrPC in the BNSS?

Section 362 of the BNSS, 2023 is the corresponding provision.

Can committal take place after a trial has begun?

Yes. Section 362 allows committal during an inquiry or trial, at any stage before the Magistrate signs the judgment, when the case ought to be tried by the Court of Session.

Is Section 323 CrPC the same as Section 323 BNSS?

No. The corresponding provision is Section 362 BNSS. Section 323 BNSS concerns the return of a commission.

This article provides general legal information. The applicable procedural law, including transitional provisions, should be checked against the facts of the case.