CrPC Section 329 and BNSS Section 368: Procedure When an Accused Is Unfit to Stand Trial
Section 329 of the Code of Criminal Procedure, 1973 dealt with an accused person whose mental condition prevented an effective defence during trial. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 368.
What Does Section 329 CrPC Mean?
Section 329 addresses the capacity of an accused to participate in a criminal trial and make a defence. A mental health condition alone does not automatically establish incapacity. The court must consider medical and other evidence and decide whether the condition actually prevents the accused from defending the case.
The phrase unsoundness of mind is used in the statutory procedure. It should not be confused with a finding that an accused lacked criminal responsibility at the time of the alleged offence; that is a distinct legal issue.
BNSS Section 368: Current Procedure During Trial
1. Judicial inquiry into capacity - Section 368(1)
Where a Magistrate or Court of Session finds reason to believe that the accused is of unsound mind and consequently incapable of making a defence, it must determine the question of mental condition and incapacity. On being satisfied by medical and other evidence, the court records its finding and postpones further proceedings.
2. Specialist examination and Medical Board - Section 368(2)
The accused is referred to a psychiatrist or clinical psychologist for care and treatment, with a report to the court. An accused aggrieved by the professional assessment may appeal to a Medical Board comprising the head of the psychiatry unit at the nearest Government hospital and a psychiatry faculty member at the nearest Government medical college.
3. Evidence review and discharge - Section 368(3)
If the court finds the accused incapable of entering a defence because of unsoundness of mind, it reviews the prosecution evidence and hears defence counsel without questioning the accused. If no prima facie case is made out, the court discharges the accused and proceeds in accordance with BNSS Section 369.
If a prima facie case exists, the trial is postponed for the treatment period indicated by the psychiatrist or clinical psychologist. This is a postponement, not a conviction or an acquittal.
4. Intellectual disability - Section 368(4)
Where a prima facie case exists but intellectual disability makes the accused incapable of entering a defence, the court must not hold the trial and must deal with the accused under BNSS Section 369. The modern statute uses the term intellectual disability in place of the older terminology found in CrPC Section 329.
Other Relevant Legal Provisions
BNSS Section 367: Procedure concerning an accused of unsound mind during an inquiry before a Magistrate. BNSS Section 369: Release and appropriate arrangements concerning a person of unsound mind pending investigation or trial. BNSS Sections 370 and 371: Resumption of proceedings and the procedure when the accused appears again before the court. BNSS Section 531: Repeal and savings, relevant to proceedings commenced under the former CrPC.
Important distinction: Fitness to stand trial concerns the accused's present ability to defend the proceedings. A substantive defence based on mental incapacity at the time of the alleged act involves different legal requirements.
CrPC Section 329: Historical Statutory Provision
The following material preserves the substance of the earlier CrPC provision, including the amendments introduced by Act 5 of 2009. The former text used the term "mental retardation"; that historical terminology is retained here only to identify the wording of the previous law.
(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 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. 1[(1A) If during trial, the Magistrate or Court of Sessions 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 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[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
1[(1A) If during trial, the Magistrate or Court of Sessions 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 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[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
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[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
(a) head of psychiatry unit in the nearest government hospital; and (b) a faculty member in psychiatry in the nearest medical college.] 2[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
(b) a faculty member in psychiatry in the nearest medical college.] 2[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
2[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether 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 330: 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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
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. (3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
(3) 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 mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] ------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
------------------- 1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009) 2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
1. Ins. by s. 26, ibid. (w.e.f. 31-12-2009)
2. Subs. by s. 26, ibid., for sub-section (2), (w.e.f. 31-12-2009).
Official Legislation and Further Reading
Bharatiya Nagarik Suraksha Sanhita, 2023 - official India Code PDF
India Code - Government of India legislative repository (search for the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023).
This article is general legal information. Application of the repeal-and-savings rules and medical findings must be assessed on the facts of each proceeding.