Section 368 BNSS: Procedure in case of person of unsound mind tried before Court

Section 368 BNSS Bare Act Text

(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.

Source: Section 368, Bharatiya Nagarik Suraksha Sanhita, 2023

Section 368 BNSS in Simple Words

When Section 368 BNSS Applies

• Section 368(1) BNSS applies when, at the trial of any person before a Magistrate or Court of Session, it appears that the person is of unsound mind and consequently incapable of making his defence. The Magistrate or Court shall first try the fact of such unsoundness of mind and incapacity.
• If the Magistrate or Court is satisfied of the fact after considering the medical and other evidence produced before him or it, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
• Under Section 368(2) BNSS, if the Magistrate or Court of Session finds during trial that the accused is of unsound mind, the accused is referred to a psychiatrist or clinical psychologist for care and treatment. The psychiatrist or clinical psychologist shall report whether the accused is suffering from unsoundness of mind.
• Under the proviso to Section 368(2) BNSS, an accused who is aggrieved by the information given to the Magistrate may prefer an appeal before the Medical Board.
• The Medical Board shall consist of the head of psychiatry unit in the nearest Government hospital and a faculty member in psychiatry in the nearest Government medical college.
• Under Section 368(3) BNSS, when the Magistrate or Court is informed that the person is of unsound mind, the Magistrate or Court shall further determine whether the unsoundness of mind renders the accused incapable of entering defence. If the accused is found so incapable, the Magistrate or Court shall record a finding, examine the prosecution evidence and hear the advocate of the accused without questioning the accused. If no prima facie case is made out, the accused is discharged and dealt with under Section 369 BNSS.
• Under the proviso to Section 368(3) BNSS, 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, the trial is postponed for the period required for the treatment of the accused.
• Under Section 368(4) BNSS, if a prima facie case is made out against the accused and he is incapable of entering defence by reason of intellectual disability, the Magistrate or Court shall not hold the trial and shall order the accused to be dealt with in accordance with Section 369 BNSS.

Time Limits Under Section 368 BNSS

• When a prima facie case is made out against an accused in respect of whom a finding of unsoundness of mind is arrived at, the trial is postponed under the proviso to Section 368(3) BNSS for the period that the psychiatrist or clinical psychologist considers required for the treatment of the accused. The section fixes no number of days or months.Act text: “postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused”

Example of Section 368 BNSS

When Section 368 BNSS Does Not Apply

• Section 368 BNSS applies at the trial of a person before a Magistrate or Court of Session. It does not apply to a proceeding that is not such a trial.
• The finding and the postponement of proceedings under Section 368(1) BNSS do not follow unless the Magistrate or Court is satisfied of the fact that the person is of unsound mind and consequently incapable of making his defence.
• Discharge under Section 368(3) BNSS does not follow if the Magistrate or Court finds that a prima facie case is made out against the accused. The trial is then postponed for treatment.
• The direction in Section 368(4) BNSS not to hold the trial does not apply unless a prima facie case is made out and the accused is incapable of entering defence by reason of intellectual disability.

Section 368 BNSS in the CrPC (Previous Law)

FAQs on Section 368 BNSS

Section 368 BNSS: Sub-sections Explained

Sections Related to Section 368 BNSS