CrPC Section 328 and BNSS Section 367: Procedure When an Accused Is of Unsound Mind
Section 328 of the Code of Criminal Procedure, 1973 dealt with an accused person's mental capacity during a Magistrate's inquiry. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 367.
Meaning and purpose of CrPC Section 328
CrPC Section 328, titled Procedure in case of accused being lunatic in the historical legislation, provided a safeguard where a Magistrate conducting an inquiry had reason to believe that the accused was of unsound mind and consequently incapable of making a defence. The legal issue is the person's ability to participate meaningfully in the proceedings, not merely the existence of a diagnosis.
BNSS Section 367 uses the heading Procedure in case of accused being person of unsound mind and expressly refers to intellectual disability rather than the older expression "mental retardation".
BNSS Section 367: Procedure during a Magistrate's inquiry
Subsection (1): Initial examination
If a Magistrate has reason to believe the person under inquiry is of unsound mind and cannot make a defence, the Magistrate must examine that issue, arrange an examination by the district civil surgeon or another State-authorised medical officer, examine the medical officer as a witness and record the examination in writing.
Subsection (2): Specialist assessment and Medical Board appeal
Where the civil surgeon finds unsoundness of mind, the person is referred to a psychiatrist or clinical psychologist of a government hospital or government medical college for care, treatment and prognosis. The specialist reports whether the person has unsoundness of mind or intellectual disability.
An accused aggrieved by that assessment may appeal to a Medical Board consisting of the head of the psychiatry unit in the nearest government hospital and a psychiatry faculty member of the nearest government medical college.
Subsection (3): Interim arrangements
Pending examination and inquiry, the Magistrate may deal with the person under BNSS Section 369, which governs release and arrangements for care and treatment.
What happens after the medical assessment?
Subsection (4): Unsoundness of mind affecting defence
The Magistrate must decide whether the condition actually prevents the accused from making a defence. If so, the Magistrate records that finding, examines prosecution evidence and hears the accused's advocate without questioning the accused. If no prima facie case exists, the accused is discharged and dealt with under Section 369. If a prima facie case exists, the inquiry is postponed for the treatment period advised by the psychiatrist or clinical psychologist, with arrangements under Section 369.
Subsection (5): Intellectual disability
Where intellectual disability makes the accused incapable of entering a defence, the Magistrate must close the inquiry and deal with the accused in accordance with Section 369. Intellectual disability does not automatically establish incapacity: the Magistrate must determine its effect on the person's ability to defend the case.
Related legal provisions
- BNSS Section 368: Procedure where incapacity due to unsoundness of mind arises during trial before a Magistrate or Court of Session.
- BNSS Section 369: Release on bail subject to statutory safeguards, or suitable care and treatment arrangements where release is not appropriate.
- BNSS Sections 370 and 371: Resumption of proceedings and procedure when the accused appears again before the court.
- BNSS Section 531: Repeal and savings, relevant to the continued treatment of certain pending CrPC proceedings.
- Mental Healthcare Act, 2017: Relevant safeguards concerning treatment and mental health establishments.
CrPC Section 328 and BNSS Section 367: Key distinction
CrPC Section 328 remains important for understanding the earlier procedure and saved cases. BNSS Section 367 reorganises the safeguards into five subsections, specifies government hospital or medical college specialist assessment and uses updated terminology for intellectual disability. Neither provision should be read as permitting an automatic criminal trial merely because an accused has a mental health condition; the court must determine capacity to make a defence.
Historical text: CrPC Section 328
The following is the historical provision as supplied in the original article, retained for reference. Its terminology reflects the former Code.
328 CRPC - Procedure in case of accused being lunatic Section 328 of Code of Criminal Procedure 1973 - 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. 1[(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. 2[(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.] ------------------- 1. Ins. by Act 5 of 2009, s. 25 (w.e.f. 31-12-2009). 2. Subs. by s. 25, ibid., for sub-section (3) (w.e.f. 31-12-2009).
Official statutes and further reading
For the authoritative statutory language, consult the Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code PDF) and the India Code statutory database. Check commencement notifications, amendments and applicable savings before relying on a provision in litigation.
This article is general legal information and not a substitute for advice based on the facts of a particular case.