Section 368 BNSS: Procedure in case of person of unsound mind tried before Court (Formerly Section 329 CrPC)

Section 368 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure in case of person of unsound mind tried before Court

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 368

Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 329 of the CrPC, 1973) governs the procedure when a person tried before a Magistrate or Court of Session appears to be of unsound mind and incapable of making their defence.

Fact of Incapacity Tried as First Issue: If the accused appears to be of unsound mind, the fact of such unsoundness and incapacity to defend must be tried as a preliminary issue by the Court.
Medical Board Examination: The Court shall cause the accused to be examined by a medical board and record finding on whether the accused is capable of making defence.
Prima Facie Case Determination: If found incapable, the Court shall postpone the trial; however, if the Court finds no prima facie case against the accused on the record, it may discharge the accused instead of postponing.

Key Landmark Precedents:

Vivian Rodrick v. State of W.B., (1971) 1 SCC 468: The Supreme Court held that the trial of a person of unsound mind without first determining their capacity to defend is a nullity.
Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495: Reiterated that the trial court must determine whether the accused can comprehend the charge and instruct counsel; if not, postponement is mandatory.

Courtroom Practice & Strategic Litigation Guidance:

Urge the court to decide the Section 368 preliminary issue first before permitting the prosecution to examine any witnesses; if the prosecution evidence is hopelessly weak, argue for an outright discharge under Section 368(3).