Section 338 CrPC: Procedure where lunatic detained is declared fit to be released

Code of Criminal Procedure, 1973

Section 338 CrPC at a Glance

Section 338 CrPC deals with procedure where lunatic detained is declared fit to be released. From 1 July 2024 it is replaced by Section 377 BNSS.

Now BNSS

Section 377 →

What Section 338 CrPC Says

338. Procedure where lunatic detained is declared fit to be released

(1) If such person is detained under the provisions of sub-section (2) of section 330, or section 335, and such Inspector-General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum; and, in case it orders him to be transferred to an asylum, may appoint a Commission, consisting of a Judicial and two medical officers.

(2) Such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.

Source: Section 338, Code of Criminal Procedure, 1973

Section 338 CrPC in Simple Words

Section 338 of the Code of Criminal Procedure, 1973 deals with a person detained under Section 330(2) CrPC or Section 335 CrPC, where the Inspector-General or visitors certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person.

The State Government may then order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum.

If it orders him to be transferred to an asylum, it may appoint a Commission, consisting of a Judicial and two medical officers, which makes a formal inquiry into the state of mind of such person.

When Section 338 CrPC Applies

  • Under Section 338(1) CrPC, the section applies if such person is detained under the provisions of Section 330(2) CrPC or Section 335 CrPC, and such Inspector-General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person.
  • Under Section 338(1) CrPC, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum.
  • Under Section 338(1) CrPC, in case the State Government orders him to be transferred to an asylum, it may appoint a Commission, consisting of a Judicial and two medical officers.
  • Under Section 338(2) CrPC, such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.

Example of Section 338 CrPC

Suresh is detained in a lunatic asylum under Section 335 of the Code of Criminal Procedure, 1973. The visitors certify that, in their judgment, Suresh may be released without danger of his doing injury to himself or to any other person. Under Section 338(1) CrPC, the State Government may thereupon order Suresh to be released, or to be detained in custody. If the State Government orders Suresh to be transferred to an asylum, it may appoint a Commission, consisting of a Judicial and two medical officers, which shall make a formal inquiry into the state of mind of Suresh under Section 338(2) CrPC.

When Section 338 CrPC Does Not Apply

  • Section 338 CrPC speaks of a person detained who is certified as one who may be released without danger of his doing injury to himself or to any other person. It does not deal with a person certified to be capable of making his defence, which is the subject of Section 337 CrPC.
  • Section 338 CrPC speaks of the State Government ordering release, detention in custody or transfer. It does not deal with the delivery of a person of unsound mind to the care of a relative or friend, which is the subject of Section 339 CrPC.

Section 338 CrPC Under BNSS 377: What Changed

Section 338 CrPC is now covered under Section 377 BNSS.

Section 338 of the Code of Criminal Procedure, 1973 is found in Section 377 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The heading of Section 377 BNSS reads person of unsound mind detained where the heading of Section 338 CrPC read lunatic detained. Section 377(1) BNSS opens with a person where Section 338(1) CrPC opened with such person. It refers to Section 369(2) BNSS and Section 374 BNSS where Section 338(1) CrPC referred to Section 330(2) CrPC and Section 335 CrPC. It reads public mental health establishment where Section 338(1) CrPC read public lunatic asylum. Section 377(2) BNSS has the same text as Section 338(2) CrPC.

View detailed comparison (CrPC 338 vs BNSS 377) →

FAQs on Section 338 CrPC

When does Section 338(1) CrPC apply to a detained person?▼

Under Section 338(1) of the Code of Criminal Procedure, 1973, the provision applies if such person is detained under the provisions of Section 330(2) CrPC or Section 335 CrPC, and such Inspector-General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person.

What may the State Government order under Section 338(1) CrPC?▼

Under Section 338(1) of the Code of Criminal Procedure, 1973, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum. In case it orders him to be transferred to an asylum, it may appoint a Commission, consisting of a Judicial and two medical officers.

What does the Commission do under Section 338(2) CrPC?▼

Under Section 338(2) of the Code of Criminal Procedure, 1973, such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.

Where is Section 338 CrPC found in BNSS from 1 July 2024?▼

From 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973. Section 338 CrPC is found in Section 377 BNSS. Section 338(1) CrPC is found in Section 377(1) BNSS and Section 338(2) CrPC is found in Section 377(2) BNSS.

Have questions about Section 338 CrPC?

Ask NyayGuru for a plain language explanation, or how it applies to your situation.

Ask NyayGuru →

Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 22 Oct 2026 ·