Criminal procedure law | Updated 18 October 2026
Section 325 CrPC and Section 364 BNSS: When a Magistrate Cannot Pass a Sufficiently Severe Sentence
Section 325 of the Code of Criminal Procedure, 1973 explains what happens when a Magistrate considers an accused person guilty but lacks authority to impose the appropriate punishment. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 364.
Meaning and purpose of Section 325 CrPC
A Magistrate cannot impose a punishment beyond the limits of the court's statutory sentencing powers. Where the Magistrate has heard the evidence for the prosecution and the accused, believes the accused is guilty and considers that a different kind or a more severe punishment is appropriate, Section 325 provides a procedure for submitting the matter to the Chief Judicial Magistrate (CJM).
The provision also covers a Magistrate of the second class who considers that the accused should be required to execute a bond under Section 106 CrPC. Under Section 364 BNSS, the corresponding reference is to a bond or bail bond under Section 125 BNSS.
Section 325 CrPC: statutory provisions
Sub-section (1): Submission to the Chief Judicial Magistrate
Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.
Sub-section (2): Jointly tried accused persons
When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.
Sub-section (3): Powers of the Chief Judicial Magistrate
The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence and shall pass such judgment, sentence or order in the case as he thinks fit, and is according to law.
Section 364 BNSS, 2023: current corresponding law
Section 364 BNSS retains the three-part procedure: a Magistrate records an opinion and sends the proceedings and accused to the CJM; jointly tried accused whom the Magistrate considers guilty are also forwarded; and the CJM may hear further evidence and pass a lawful judgment, sentence or order.
One textual update is that Section 364(1) refers to execution of a bond or bail bond under Section 125 BNSS, instead of the bond under Section 106 CrPC. Section 125 BNSS concerns security for keeping the peace on conviction.
How the procedure operates
- Hearing of evidence: The Magistrate considers evidence presented for the prosecution and accused.
- Opinion on guilt and sentencing: The Magistrate considers the accused guilty but concludes that the appropriate punishment exceeds the court's powers or differs in kind.
- Record and submission: The Magistrate may record the opinion, submit the proceedings and forward the accused to the subordinate court's CJM.
- Joint trial: Other jointly tried accused whom the Magistrate considers guilty must also be forwarded.
- CJM decision: The CJM may examine parties, recall witnesses or receive further evidence, and then pass a judgment, sentence or order in accordance with law.
Practical illustration
Suppose a Magistrate, after hearing the evidence, considers that an accused person is guilty and that the appropriate sentence would exceed the Magistrate's lawful sentencing powers. Rather than imposing an unauthorized sentence, the Magistrate may use Section 364 BNSS (or Section 325 CrPC where applicable) to submit the case to the CJM for a lawful determination.
Important legal points
- Referral is not an automatic conviction or a predetermined sentence by the CJM.
- The referring Magistrate must first have heard the evidence for the prosecution and the accused.
- The CJM is empowered to evaluate the matter, including by taking further evidence, and must act according to law.
- The procedure is distinct from a case that must be committed to the Court of Session because of its trial jurisdiction.
Official statutory references
Read the Bureau of Police Research and Development publication of the BNSS, 2023 (PDF) and consult the India Code legislative database for the applicable legislation and amendments. For pending proceedings, check Section 531 BNSS and relevant court orders.
Frequently asked questions
What is Section 325 CrPC?
It sets out the procedure where a Magistrate, after hearing evidence, considers the accused guilty but lacks power to impose an appropriate kind or severity of punishment.
What is the corresponding provision under BNSS?
Section 364 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the corresponding provision.
Does the Magistrate directly impose a sentence beyond their powers?
No. The Magistrate may record an opinion, submit the proceedings and forward the accused to the Chief Judicial Magistrate.
Can the Chief Judicial Magistrate hear additional evidence?
Yes. The Chief Judicial Magistrate may examine parties, recall witnesses and take further evidence before passing a lawful judgment, sentence or order.
This article is general legal information. The facts, applicable transitional provisions and orders in a particular case should be examined before taking legal action.