Section 326 CrPC and Section 365 BNSS: Evidence Recorded by Successive Magistrates

A change of the presiding Judge or Magistrate does not ordinarily require a criminal inquiry or trial to begin afresh. Section 326 of the Code of Criminal Procedure, 1973 and its successor, Section 365 of the Bharatiya Nagarik Suraksha Sanhita, 2023, govern when a successor may rely on evidence recorded by a predecessor.

Current law: Section 365 BNSS corresponds to Section 326 CrPC. The BNSS came into force on 1 July 2024. For proceedings already pending at commencement, the saving and transitional provisions of Section 531 BNSS must also be considered.

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Section 326 CrPC: Meaning and statutory requirements

Heading: Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.

Sub-section (1): Reliance on earlier evidence

Where a Judge or Magistrate has heard and recorded all or part of the evidence during an inquiry or trial and ceases to exercise jurisdiction, the succeeding Judge or Magistrate who exercises that jurisdiction may act upon evidence recorded by the predecessor. The successor may also decide the case on a combination of earlier evidence and evidence recorded subsequently.

Proviso - recall of witnesses: If further examination of an already examined witness is necessary in the interests of justice, the successor may re-summon that witness and permit further examination, cross-examination and re-examination as appropriate.

Sub-section (2): Transfer of proceedings

When a case is transferred from one Judge to another or from one Magistrate to another under the procedural law, the first is treated as having ceased to exercise jurisdiction and the transferee as the successor for this purpose.

Sub-section (3): Express exclusions

The provision does not apply to summary trials, proceedings stayed under Section 322 CrPC, or proceedings submitted to a superior Magistrate under Section 325 CrPC.

Section 365 BNSS, 2023: Present legal position

Section 365 of the BNSS substantially carries forward the rule for successive Judges or Magistrates. Under Section 365(1), the successor may rely on previously recorded evidence and may recall a witness where justice requires. Section 365(2) covers transfers. Section 365(3) excludes summary trials, cases stayed under Section 361 BNSS and cases submitted under Section 364 BNSS.

The power to rely on earlier evidence is not an automatic direction to convict. The court must still evaluate admissibility, credibility, the right to a fair trial and the evidence as a whole.

When does the successor have to hear evidence again?

In an ordinary trial covered by the section, the successor need not automatically rehear every witness. A recall may be ordered if necessary for justice. Summary trials are expressly excluded; the applicable summary-trial procedure and judicial precedents must be considered before relying on evidence taken by a predecessor.

Practical example

Suppose a Magistrate records testimony from three prosecution witnesses and is then transferred. A duly empowered successor takes charge. In a qualifying regular trial, the successor may continue using the recorded testimony, hear remaining witnesses and decide the case. If clarification from a previously examined witness is essential, the successor may recall that witness. The outcome differs where the statutory exclusion for summary trials applies.

Uttar Pradesh state amendment and legislative history

The original page records the Uttar Pradesh amendment under Uttar Pradesh Act 16 of 1976, Section 8, extending the terminology in Section 326 to include a Judge as well as a Magistrate. The central Code of Criminal Procedure (Amendment) Act, 1978 (Act 45 of 1978), Section 27, substituted the corresponding wording with effect from 18 December 1978. These historical amendments are relevant to the interpretation of the former CrPC provision; any present state-specific modification must be checked against the applicable current law.

Related provisions

Section 322 CrPC / Section 361 BNSS - cases a Magistrate cannot dispose of.
Section 325 CrPC / Section 364 BNSS - cases requiring a sentence beyond the Magistrate's powers.
Section 531 BNSS - repeal and savings, including transitional treatment of pending proceedings.

Frequently asked questions

Can a successor Magistrate use evidence recorded by a predecessor?

Yes. Section 365(1) BNSS generally permits a successor Judge or Magistrate exercising jurisdiction to rely on evidence recorded by the predecessor, subject to the statutory exceptions.

Can witnesses be recalled?

Yes. The successor may re-summon a previously examined witness if further examination is necessary in the interests of justice.

Does the rule apply to summary trials?

No. Section 365(3) BNSS excludes summary trials, as well as proceedings stayed under section 361 or submitted under section 364.

What is the current equivalent of Section 326 CrPC?

Section 365 of the Bharatiya Nagarik Suraksha Sanhita, 2023, effective from 1 July 2024.

Official statutory references

Updated: 18 October 2026. This article provides general legal information. For a specific pending matter, consult the applicable legislation, amendments, judicial decisions and procedural orders.