Section 352 CrPC: Judges and Magistrates Not to Try Certain Offences Before Themselves
Section 352 of the Code of Criminal Procedure, 1973 protected the impartiality of criminal proceedings by restricting a Judge or Magistrate from trying certain offences committed in their presence or against their authority. Its corresponding provision under the current law is Section 391 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Section 352 CrPC - Original statutory provision
Heading: Certain Judges and Magistrates not to try certain offences when committed before themselves.
Except as provided in sections 344, 345, 349 and 350, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.
Section 391 BNSS - Current corresponding provision
Heading: Certain Judges and Magistrates not to try certain offences when committed before themselves.
Except as provided in sections 383, 384, 388 and 389, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in section 215, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.
The substance of the restriction is retained. The principal textual change is the renumbering of the cross-referenced provisions in the BNSS.
Meaning and legal effect
The provision addresses a potential conflict between the role of a judicial officer who personally witnesses or experiences alleged misconduct and the role of an impartial trial judge. Subject to the specified statutory exceptions, a Judge of a Criminal Court other than a High Court Judge, or a Magistrate, cannot personally try an accused for an offence covered by Section 215 BNSS when the alleged offence:
- was committed before that Judge or Magistrate;
- amounted to contempt of that judicial officer's authority; or
- came to that officer's notice in the course of a judicial proceeding.
Section 215 BNSS governs restrictions on courts taking cognizance of specified offences affecting lawful authority, public justice and documents or evidence, subject to the conditions laid down in that section. The prohibition in Section 391 is not a general bar on prosecution; it concerns who may conduct the trial and must be read with the special procedures expressly preserved by the law.
Statutory exceptions and related provisions
| Earlier CrPC | Current BNSS | Subject |
|---|---|---|
| Section 195 | Section 215 | Prosecution for specified offences affecting public justice and related matters |
| Section 344 | Section 383 | Summary procedure for trial for giving false evidence |
| Section 345 | Section 384 | Procedure in certain cases of contempt |
| Section 349 | Section 388 | Refusal to answer questions or produce documents or things |
| Section 350 | Section 389 | Summary procedure for non-attendance by a summoned witness |
| Section 352 | Section 391 | Restriction on trying specified offences before oneself |
These exceptions authorize particular summary or immediate procedures where their own conditions are satisfied. They should not be treated as a blanket permission to try every alleged act of contempt or misconduct.
Practical illustration
If an alleged offence affecting the administration of justice is committed in a Magistrate's presence, Section 391 BNSS generally prevents that Magistrate from conducting the trial for an offence covered by Section 215 BNSS. However, where the facts meet the specific requirements of Section 384 or another listed exception, the special statutory procedure may be available. The proper course depends on the nature of the alleged conduct and the governing procedural requirements.
Frequently asked questions
What replaced Section 352 CrPC?
Section 391 of the BNSS, 2023 is the corresponding provision for current criminal procedure.
Can a Magistrate punish misconduct occurring in court?
Specific statutory procedures permit action in defined circumstances, including under Sections 383, 384, 388 and 389 BNSS. Outside those exceptions, Section 391 restricts the Magistrate from personally trying the covered offence.
Does Section 391 BNSS apply to High Court Judges?
The text expressly excludes a Judge of a High Court from this particular statutory restriction. That exclusion does not displace other applicable rules governing judicial impartiality and contempt jurisdiction.
Does Section 352 CrPC still matter?
Yes. It remains relevant when interpreting older decisions and proceedings governed by the former Code, subject to the repeal and savings provisions of Section 531 BNSS.
Official legal sources
- Ministry of Home Affairs - New Criminal Laws
- Bureau of Police Research and Development - BNSS and CrPC comparative text (PDF)
- India Code - Official Central legislation repository
- Government of Kerala - BNSS and CrPC comparison (PDF)
This article provides general legal information. Refer to the current statutory text, notifications, and relevant judicial decisions for a particular matter.