Section 378 BNSS: Delivery of Person of Unsound Mind to Care of Relative or Friend
Section 378 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the circumstances in which a person detained under Section 369 or Section 374 may be delivered to the care and custody of a relative or friend. The provision also prescribes safeguards concerning care, inspection, production before the Court and the procedure to be followed if an accused later becomes capable of making a defence.
What Section 378 BNSS provides
The section creates a supervised mechanism under which the State Government may permit a detained person to be placed in the care and custody of a relative or friend. It is not an automatic right to release. The relative or friend must apply to the State Government and furnish security to its satisfaction for compliance with the statutory conditions.
Section 378 BNSS - statutory text
378. Delivery of person of unsound mind to care of relative or friend.
(1) Whenever any relative or friend of any person detained under the provisions of section 369 or section 374 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of such State Government, that the person delivered shall-
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct;
(c) in the case of a person detained under sub-section (2) of section 369, be produced when required before such Magistrate or Court, order such person to be delivered to such relative or friend.
(2) If the person so delivered is accused of any offence, the trial of which has been postponed by reason of his being of unsound mind and incapable of making his defence, and the inspecting officer referred to in clause (b) of sub-section (1), certifies at any time to the Magistrate or Court that such person is capable of making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the Magistrate or Court; and, upon such production the Magistrate or Court shall proceed in accordance with the provisions of section 371, and the certificate of the inspecting officer shall be receivable as evidence.
Key conditions for delivery to a relative or friend
- The person must be one detained under Section 369 or Section 374 of the BNSS.
- A relative or friend must make an application seeking care and custody.
- The State Government has discretion to allow the request.
- The applicant must give security to the satisfaction of the State Government.
- The person must be properly cared for and protected from causing injury to self or others.
- The person must be produced for inspection whenever and wherever directed by the State Government.
- Where Section 369(2) applies, the person must be produced before the Magistrate or Court when required.
What happens when the accused becomes capable of making a defence?
Under sub-section (2), if the inspecting officer certifies that an accused whose trial had been postponed is now capable of making a defence, the Magistrate or Court must require the relative or friend to produce the accused. After production, the Magistrate or Court proceeds under Section 371. The inspecting officer's certificate is receivable in evidence.
Meaning of important expressions
State Government
For Section 378, the statutory power to permit delivery to a relative or friend is placed with the State Government. The Court does not replace the security and supervision requirements specifically assigned by this provision to the State Government.
Security
"Security" in this context is the assurance required by the State Government from the relative or friend so that the statutory duties concerning care, prevention of injury, inspection and production will be complied with.
Capable of making his defence
This expression concerns the accused person's capacity to participate in and defend the criminal proceedings. Section 378(2) links restoration of that capacity to production before the Magistrate or Court and further action under Section 371.
Related BNSS provisions
Section 378 forms part of Chapter XXVII of the BNSS dealing with accused persons of unsound mind. The surrounding provisions address the procedure when an accused is incapable of making a defence, acquittal on the ground of unsoundness of mind, safe custody, discharge and restoration of capacity.
See also Section 371 - Procedure on accused appearing before Magistrate or Court, Section 374 - Person acquitted on ground of unsoundness of mind to be detained in safe custody, Section 376, and Section 377.
Legal status of the BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. It was enacted on 25 December 2023 and, subject to the notified exception concerning the First Schedule entry linked to Section 106(2) of the Bharatiya Nyaya Sanhita, came into force on 1 July 2024.
This page is intended as a legal-information resource. For a case-specific issue involving mental capacity, custody, production, medical assessment or pending criminal proceedings, the facts and the applicable judicial orders should be examined separately.