CrPC Section 339 and BNSS Section 378: Delivery to Care of Relative or Friend
Section 339 of the Code of Criminal Procedure, 1973 addressed the delivery of a detained person of unsound mind into the care of a relative or friend. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 378, which governs applications, safeguards, inspection and production before a court.
Meaning of BNSS Section 378
Section 378, titled "Delivery of person of unsound mind to care of relative or friend", appears in Chapter XXVII of the BNSS concerning accused persons of unsound mind. It allows the State Government to consider placing a person detained under Section 369 or Section 374 into the care and custody of a relative or friend who applies and furnishes satisfactory security.
For this provision, care and custody means responsibility for the person's welfare, safety and availability for inspection or court proceedings, subject to the State Government's directions. Security means an undertaking or assurance acceptable to the State Government for compliance with the statutory conditions. It is not an automatic entitlement to release.
Section 378(1): Conditions for delivery to a relative or friend
The State Government may order delivery after considering the application and the security offered. The applicant must undertake that the person will:
- Receive proper care and protection: be properly cared for and prevented from causing injury to themselves or anyone else (clause (a)).
- Be available for inspection: be produced before an inspecting officer at the times and places directed by the State Government (clause (b)).
- Attend court when required: where detention was under Section 369(2), be produced before the Magistrate or Court whenever required (clause (c)).
The provision uses the word "may": the State Government has discretion, exercised within the statute, rather than a mandatory duty to grant every application. The conditions are designed to balance family care, personal safety and the administration of justice.
Section 378(2): When the accused becomes capable of making a defence
If the trial was postponed because the accused was of unsound mind and incapable of making a defence, an inspecting officer may subsequently certify to the Magistrate or Court that the accused is capable of making a defence.
The Magistrate or Court must then require the relative or friend to produce the accused. Upon production, the court proceeds under BNSS Section 371, which addresses the procedure when the accused appears before the Magistrate or Court. The inspecting officer's certificate is receivable as evidence, but the court must follow the applicable statutory procedure.
Earlier law: Section 339 of the Code of Criminal Procedure, 1973
CrPC Section 339 was titled "Delivery of lunatic to care of relative or friend". That historic terminology is retained here solely to identify the original provision. Current legislation uses "person of unsound mind" in its heading.
CrPC Section 339(1)
A relative or friend of a person detained under CrPC Section 330 or 335 could apply to the State Government for care and custody. The applicant had to provide security satisfactory to the Government and undertake proper care, protection from injury, production for inspection and, for detention under Section 330(2), production before the Magistrate or Court when required.
CrPC Section 339(2)
Where the criminal trial had been postponed because the accused was incapable of making a defence, certification by the inspecting officer that the accused had become capable required production before the Magistrate or Court. The court then followed CrPC Section 332, and the certificate was receivable as evidence.
Corresponding statutory references
- CrPC Section 330 corresponds to BNSS Section 369 (release of person of unsound mind pending investigation or trial).
- CrPC Section 335 corresponds to BNSS Section 374 (custody following acquittal on the ground of unsoundness of mind).
- CrPC Section 332 corresponds to BNSS Section 371 (procedure when accused appears before Magistrate or Court).
- CrPC Section 339 corresponds to BNSS Section 378 (delivery to care of relative or friend).
Frequently asked questions
Can a relative automatically obtain custody under BNSS Section 378?
No. The State Government may approve an application after considering the required security and the statutory safeguards.
Can a friend apply even if they are not a family member?
Yes. Section 378 expressly refers to a relative or friend, subject to the State Government's satisfaction and the required undertakings.
What happens if the person becomes fit to defend the criminal case?
The inspecting officer may certify that the person can make a defence. The court then calls for the person's production and follows BNSS Section 371, as applicable.
Is CrPC Section 339 still applicable?
BNSS Section 378 is the corresponding current provision. CrPC Section 339 may remain relevant in proceedings covered by the saving arrangements under BNSS Section 531.
Official legislation and further reading
For the enacted provisions and their context, consult the Ministry of Home Affairs, the Bureau of Police Research and Development - New Criminal Laws, and the BNSS text and section correspondence published by BPR&D (PDF). The India Code portal provides statutory materials. Verify subsequent amendments and notifications when applying these provisions to a particular case.
This article is general legal information, not case-specific legal advice. Historical statutory wording is described for reference.