Section 368 BNSS: Procedure When a Person of Unsound Mind Is Tried Before Court

Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 sets out the procedure a Magistrate or Court of Session must follow when, during trial, an accused appears to be of unsound mind and incapable of making a defence.

Bharatiya Nagarik Suraksha Sanhita, 2023 - Act No. 46 of 2023 - in force from 1 July 2024.

In brief: the Court must first determine the accused's mental condition and ability to defend the case, obtain appropriate psychiatric or clinical psychological assessment, and then decide whether the trial should be postponed, the accused discharged for want of a prima facie case, or the accused dealt with under Section 369 BNSS.

What Section 368 BNSS provides

  • The Court must determine whether the accused is of unsound mind and, because of that condition, is incapable of making a defence.
  • If unsoundness of mind is found during trial, the accused must be referred to a psychiatrist or clinical psychologist for care, treatment and a report to the Court.
  • An accused aggrieved by that medical information may appeal to the Medical Board described in sub-section (2).
  • If the accused is incapable of entering a defence, the Court must assess whether the prosecution material discloses a prima facie case.
  • If no prima facie case exists, the accused is to be discharged and dealt with under Section 369. If a prima facie case exists and treatment is required, the trial is postponed for the period considered necessary by the psychiatrist or clinical psychologist.
  • If the accused cannot enter a defence because of intellectual disability and a prima facie case exists, the Court does not hold the trial and proceeds in accordance with Section 369.

Text of Section 368 - Bharatiya Nagarik Suraksha Sanhita, 2023

368. Procedure in case of person of unsound mind tried before Court. - (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness of mind and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) If during trial, the Magistrate or Court of Session finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:

Provided that if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of-

(a) head of psychiatry unit in the nearest Government hospital; and

(b) a faculty member in psychiatry in the nearest Government medical college.

(3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate or Court shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 369:

Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.

(4) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of intellectual disability, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 369.

Meaning and practical effect of Section 368

Section 368 protects the fairness of a criminal trial where the accused may not be capable of understanding the proceedings or effectively instructing a defence. The Court is required to make a judicial determination on incapacity rather than proceeding with the trial merely because the prosecution is ready to continue.

The provision also creates a medical assessment mechanism. A psychiatrist or clinical psychologist reports on the accused's condition, and the proviso to sub-section (2) permits an appeal to a Medical Board consisting of the head of the psychiatry unit in the nearest Government hospital and a faculty member in psychiatry in the nearest Government medical college.

Prima facie review before postponing the trial

Where the accused is found incapable of entering a defence, sub-section (3) requires the Court to examine the prosecution record and hear the accused's advocate without questioning the accused. If no prima facie case is made out, the accused is discharged instead of the trial being postponed. If a prima facie case exists, the trial may be postponed for the treatment period considered necessary by the psychiatrist or clinical psychologist.

Relationship with Section 369 BNSS

Section 369 BNSS deals with the manner in which a person of unsound mind is to be dealt with pending investigation or trial. Section 368 expressly directs the Court to use Section 369 where the accused is discharged under sub-section (3), or where a prima facie case exists but the accused is incapable of entering a defence because of intellectual disability under sub-section (4).

Corresponding provision under the Code of Criminal Procedure, 1973

Section 368 BNSS corresponds to Section 329 of the Code of Criminal Procedure, 1973. The BNSS is the current criminal procedure law for proceedings governed by it from its commencement, subject to the statutory transition and savings provisions.

Key takeaway

Section 368 BNSS prevents a criminal trial from continuing against an accused who is unable to make a defence because of unsoundness of mind or intellectual disability. It combines judicial findings, medical assessment, a Medical Board appeal mechanism and a prima facie review of the prosecution case before deciding whether to discharge, postpone the trial or proceed under Section 369.