Section 368 of The Bharatiya Nagarik Suraksha Sanhita, 2023
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.
Summary
- If an accused person appears to be of unsound mind and unable to defend themselves, the Court must first investigate and record a finding on this incapacity.
- The Court may refer the accused to a psychiatrist or clinical psychologist for evaluation and treatment.
- The accused has the right to appeal the findings of the psychiatrist or clinical psychologist to a designated Medical Board.
- If the accused is found incapable of defense, the Court will review the prosecution's evidence to determine if a prima facie case exists.
- If no prima facie case is found, the Court will discharge the accused and follow the procedures in section 369.
Practical examples
FAQ
1. What happens if the Court finds the accused is of unsound mind?
The Court must record a finding of incapacity and postpone further proceedings in the case.
2. Who sits on the Medical Board for an appeal?
The board consists of the head of the psychiatry unit in the nearest Government hospital and a faculty member in psychiatry from the nearest Government medical college.
3. Can the Court discharge an accused person of unsound mind?
Yes, if the Court finds that no prima facie case is made out against the accused after reviewing the evidence, they may discharge the accused and deal with them under section 369.
4. Is the accused questioned during the prima facie case review?
No, the Court examines the evidence and hears the advocate of the accused without questioning the accused.
Test yourself
1.Under Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023, what must a Magistrate or Court of Session do first if it appears during a trial that the accused is of unsound mind?
2.Under Section 368 of the BNSS, 2023, if a psychiatrist reports that an accused person is of unsound mind, what is the next step the court must perform?
3.Under Section 368 of the new Indian criminal procedure law, what must the court do if a prima facie case, which means sufficient basic evidence, is made out but the accused is incapable of entering defence by reason of intellectual disability?
4.Under Section 368 and Section 369 of the 2023 Sanhita, if the court finds that no prima facie case, meaning no basic ground of evidence, is made out against an accused of unsound mind during trial, what should the court do?