CrPC Section 330 and BNSS Section 369: Release of an Accused with Unsound Mind
Section 330 of the Code of Criminal Procedure, 1973 provided for release, treatment and protective arrangements where an accused was found incapable of making a defence. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 369.
What does Section 369 of the BNSS provide?
BNSS Section 369, titled "Release of person of unsound mind pending investigation or trial", addresses the position of an accused found under Section 367 (inquiry) or Section 368 (trial) to be unable to enter a defence because of unsoundness of mind or intellectual disability. It regulates conditional bail, access to psychiatric treatment, safe accommodation and discharge or residential care.
Section 369(1): Bail with treatment and supervision
The Magistrate or Court is to order release on bail, whether the underlying offence is ordinarily bailable or non-bailable, where the statutory safeguards are met. The condition must not require in-patient treatment, and a friend or relative must undertake to arrange regular out-patient psychiatric treatment at the nearest medical facility and prevent injury to the accused or another person.
This is a special protective bail provision; it is not an unconditional entitlement to release without medical and supervisory safeguards.
Section 369(2): When bail or an undertaking is unavailable
If bail cannot be granted in the Court's opinion or an appropriate undertaking is not furnished, the Court must direct that the accused be kept at a place where regular psychiatric treatment is available and report the action to the State Government. Detention in a public mental health establishment must comply with the applicable State rules under the Mental Healthcare Act, 2017.
Section 369(3): Discharge, safe release and residential care
The Court considers the nature of the act and the degree of mental illness or intellectual disability. Where discharge is ordered on medical or specialist opinion under Sections 367 or 368, release may be subject to sufficient security to prevent injury. Where discharge is not appropriate, transfer to a residential facility may be ordered for care, education and training.
Related statutory provisions
- BNSS Section 367: Procedure where an accused is incapable of defence during an inquiry (corresponding to CrPC Section 328).
- BNSS Section 368: Procedure when incapacity is identified during trial (corresponding to CrPC Section 329).
- BNSS Section 370: Resumption of an inquiry or trial after the accused becomes capable of defending the case (corresponding to CrPC Section 331).
- BNSS Section 531: Repeal and savings, including the treatment of specified pending proceedings.
How does the Court decide?
- Establish incapacity to defend through the statutory medical and judicial process.
- Assess whether in-patient treatment is needed and whether a friend or relative can give the required undertaking.
- Consider bail with out-patient care, or arrange treatment in an appropriate facility if bail conditions cannot be satisfied.
- Consider discharge and security or residential care under subsection (3), having regard to medical opinion and safety.
- Review capacity to resume proceedings under the relevant provisions when appropriate.
Official legal sources
Bharatiya Nagarik Suraksha Sanhita, 2023 - official India Code PDF (see Sections 367-370 and 531).
India Code - Government of India statutory database (search for the Code of Criminal Procedure, 1973 and the Mental Healthcare Act, 2017).
Historical text: CrPC Section 330 (1973 Code)
The following original provision is retained for reference to the former Code and proceedings governed by its savings provisions. Expressions such as "mental retardation" and references to the Mental Health Act, 1987 are historical statutory wording; the current BNSS uses "intellectual disability" and refers to the Mental Healthcare Act, 2017.
1[330. Release of person of unsound mind pending investigation or trial.-- (1) Whenever a person if found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail:
Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.
(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government:
Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987).
(3) Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered:
Provided that--
(a) if on the basis of medical opinion or opinion of a specialist, the
Magistrate or Court, as the case may be, decide to order discharge of the
accused, as provided under section 328 or section 329, such release may be
ordered, if sufficient security is given that the accused shall be prevented
from doing injury to himself or to any other person;
(b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training.]
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1. Subs. by Act 5 of 2009, s. 27, for section 330 (w.e.f.
31-12-2009).