Section 328 CrPC: Procedure in case of accused being lunatic

What Section 328 CrPC Says

328. Procedure in case of accused being lunatic

(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.

(1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation:

Provided that if the accused is aggrieved by the information given by the psychiatric 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 medical college.

(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.

(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate 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 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 he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 330:

Provided that if the Magistrate 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 proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330.

(4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330.

Source: Section 328, Code of Criminal Procedure, 1973

Section 328 CrPC in Simple Words

When Section 328 CrPC Applies

• Section 328(1) CrPC applies when a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence.
• In that case the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct. The Magistrate shall examine that surgeon or other officer as a witness, and shall reduce the examination to writing.
• Under Section 328(1A) CrPC, if the civil surgeon finds the accused to be of unsound mind, the civil surgeon shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition. The psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation.
• Under the proviso to Section 328(1A) CrPC, if the accused is aggrieved by the information given to the Magistrate, the accused 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 medical college.
• Under Section 328(2) CrPC, pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of Section 330 CrPC.
• Under Section 328(3) CrPC, if the Magistrate is informed that the person referred to in Section 328(1A) CrPC is of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence. If the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution.
• After hearing the advocate of the accused but without questioning the accused, if the Magistrate finds that no prima facie case is made out against the accused, the Magistrate shall, instead of postponing the enquiry, discharge the accused and deal with the accused in the manner provided under Section 330 CrPC.
• Under the proviso to Section 328(3) CrPC, if the Magistrate 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 Magistrate shall postpone the proceeding and order the accused to be dealt with as provided under Section 330 CrPC.
• Under Section 328(4) CrPC, if the Magistrate is informed that the person referred to in Section 328(1A) CrPC is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence. If the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under Section 330 CrPC.

Time Limits Under Section 328 CrPC

• Under the proviso to Section 328(3) CrPC, the Magistrate shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.Act text: “postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused”

Example of Section 328 CrPC

When Section 328 CrPC Does Not Apply

• Section 328(1) CrPC speaks of a Magistrate who has reason to believe that the person is of unsound mind and consequently incapable of making his defence. It does not deal with a Magistrate who has no such reason to believe.
• Section 328(3) CrPC speaks of a Magistrate who finds that no prima facie case is made out against the accused. The proviso to Section 328(3) CrPC deals with the case where a prima facie case is made out.
• Section 328(4) CrPC speaks of a person with mental retardation. It does not deal with a person of unsound mind, who is dealt with under Section 328(3) CrPC.

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