Sections 328–339 CrPC vs Sections 367–378 BNSS — Accused Persons of Unsound Mind

In India, Sections 367 to 378 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 328 to 339 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The structure is unchanged; the inquiry-stage specialist and the Medical Board now come from Government institutions, and the Mental Health Review Board certifies fitness.

Sections 367 to 371 deal with an accused who cannot make a defence now; Sections 372 to 378 with an accused who was of unsound mind when the act was done — the defence in Section 22 of the Bharatiya Nyaya Sanhita, 2023 (BNS), formerly Section 84 of the Indian Penal Code, 1860 (IPC) — and what follows an acquittal on that ground.

At a glance

The chapter is procedural; neither First Schedule classifies it.

What changed

Section 328 CrPC → Section 367 BNSS

• Modified — sub-section (2) (formerly (1A)): the civil surgeon refers the accused to "a psychiatrist or clinical psychologist of Government hospital or Government medical college". Section 328(1A) CrPC said only "a psychiatrist or clinical psychologist".
• Modified — Medical Board, clause (b): "a faculty member in psychiatry in the nearest medical college" → "in the nearest Government medical college". Clause (a): "nearest government hospital" → "nearest Government hospital".
• Minor edit — "mental retardation" → "intellectual disability" (sub-sections (2) and (5)); "is of unsound mind" → "is a person of unsound mind" (sub-sections (1) and (2)); "such surgeon or other officer" → "such surgeon or other medical officer"; "If such Magistrate" → "If the Magistrate"; sub-sections renumbered (1A)–(4) → (2)–(5); "section 330" → "section 369"; heading "accused being lunatic" → "accused being person of unsound mind".

Section 329 CrPC → Section 368 BNSS

• Modified — Medical Board, clause (b): "nearest medical college" → "nearest Government medical college".
• Minor edit — "psychiatric or clinical psychologist" → "psychiatrist or clinical psychologist" in the proviso (Section 367(2)'s proviso still reads "psychiatric"); "Court of Sessions" → "Court of Session"; "such unsoundness and incapacity" → "such unsoundness of mind and incapacity"; "If such Magistrate or Court" → "If the Magistrate or Court"; "whether unsoundness" → "whether the unsoundness"; "government hospital" → "Government hospital"; "mental retardation" → "intellectual disability"; "section 330" → "section 369"; sub-sections renumbered.
• Unchanged on the text — the trial-stage referral in Section 368(2) does not add "of Government hospital or Government medical college"; that qualifier appears only in the inquiry-stage referral in Section 367(2).

Section 330 CrPC → Section 369 BNSS — Minor edit: "mental retardation" → "intellectual disability" throughout; "lunatic asylum" → "public mental health establishment"; rules "under the Mental Health Act, 1987 (14 of 1987)" → "under the Mental Healthcare Act, 2017"; "residential facility for persons of unsound mind or mental retardation" → "for persons with unsoundness of mind or intellectual disability"; "is of opinion" → "is of the opinion"; a comma after "as the case may be" in sub-section (1); "328 or 329" → "367 or 368".

Section 331 CrPC → Section 370 BNSS — Minor edit: cross-references renumbered.

Section 332 CrPC → Section 371 BNSS — Minor edit: cross-references renumbered; "incapable making his defence" → "incapable of making his defence".

Sections 333 and 334 CrPC → Sections 372 and 373 BNSS — Identical: headings and text word for word.

Section 335 CrPC → Section 374 BNSS — Minor edit: "lunatic asylum" → "public mental health establishment"; rules "under the Indian Lunacy Act, 1912 (4 of 1912)" → "under the Mental Healthcare Act, 2017"; heading "Person acquitted on such ground" → "Person acquitted on ground of unsoundness of mind".

Section 336 CrPC → Section 375 BNSS — Minor edit: cross-references renumbered; "officer-in-charge" → "officer in charge" in the heading.

Section 337 CrPC → Section 376 BNSS

• Modified — for a person detained in a mental health establishment, the certifying body changes from "the visitors of such asylum, or any two of them" to "the Mental Health Review Board constituted under the Mental Healthcare Act, 2017".
• Minor edit — "If such person is detained" → "If a person is detained"; "detained a lunatic asylum" → "detained in a public mental health establishment"; "section 332" → "section 371"; heading "lunatic prisoner" → "prisoner of unsound mind".
• Drafting note — the closing words still refer to "the certificate of such Inspector-General or visitors as aforesaid", although visitors are no longer mentioned earlier in the section. Section 377(1) also still refers to "such Inspector-General or visitors".

Section 338 CrPC → Section 377 BNSS — Minor edit: "public lunatic asylum" → "public mental health establishment"; "such an asylum" → "such establishment"; "If such person" → "If a person"; cross-references renumbered; heading "lunatic detained" → "person of unsound mind detained".

Section 339 CrPC → Section 378 BNSS — Minor edit: cross-references renumbered; "inspecting office" → "inspecting officer"; heading "lunatic" → "person of unsound mind".

Statutory text (relevant extract)

Extract — Section 367(2) BNSS (opening words):

(2) If the civil surgeon finds the accused to be a person of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist of Government hospital or Government medical college for care, treatment and prognosis of the condition …

Extract — Section 369(1) BNSS:

(1) Whenever a person if found under section 367 or section 368 to be incapable of entering defence by reason of unsoundness of mind or intellectual disability, 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:

Extract — Section 376 BNSS (part):

… or, in the case of a person detained in a public mental health establishment, the Mental Health Review Board constituted under the Mental Healthcare Act, 2017, shall certify that, in his or their opinion, such person is capable of making his defence …

How it works

1. Reason to believe (Sections 367(1), 368(1)). At an inquiry, the Magistrate who has "reason to believe" the accused is of unsound mind and "consequently incapable of making his defence" must inquire, have the accused examined by the civil surgeon of the district (or another medical officer the State Government directs), and examine that officer as a witness. At a trial, the Magistrate or Court of Session must "in the first instance, try the fact of such unsoundness of mind and incapacity", on medical and other evidence.
2. Specialist referral and appeal (Sections 367(2), 368(2)). The accused is referred to a psychiatrist or clinical psychologist, who reports whether the accused suffers from unsoundness of mind (and, at the inquiry stage, intellectual disability). An accused aggrieved by that information may appeal to a Medical Board of the head of psychiatry in the nearest Government hospital and a psychiatry faculty member in the nearest Government medical college.
3. Capacity and prima facie case (Sections 367(4)–(5), 368(3)–(4)). If the accused is of unsound mind and incapable of entering a defence, the court records that finding and examines the prosecution evidence, hearing the advocate "but without questioning the accused". No prima facie case → discharge. Prima facie case → postponement "for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment". If incapacity is due to intellectual disability, the inquiry is closed (Section 367(5)) or the trial is not held (Section 368(4)), and the accused is dealt with under Section 369.
4. Bail or treatment (Section 369). Release on bail is mandatory where in-patient treatment is not needed and a friend or relative undertakes to obtain out-patient treatment; otherwise the accused is kept where regular psychiatric treatment can be provided. Under Section 369(3) the court may also order release on security or transfer to a residential facility.
5. Resumption (Sections 370–371). The case may resume "at any time after the person concerned has ceased to be of unsound mind". An officer's certificate of capacity is receivable in evidence.
6. Unsoundness at the time of the act (Sections 372–373). If the accused is now of sound mind but the evidence shows reason to believe the act was done while, by reason of unsoundness of mind, the accused was "incapable of knowing the nature of the act or that it was wrong or contrary to law", the Magistrate proceeds (and commits if the case is Sessions-triable). An acquittal on that ground must state "specifically whether he committed the act or not".
7. After acquittal (Section 374). If the finding is that the accused did the act, the court orders safe custody or delivery to a relative or friend on security, and reports to the State Government.
8. Release from detention (Sections 375–378). The Inspector-General of Prisons (or an empowered jail officer) or the Mental Health Review Board certifies fitness; the State Government may order release, custody or transfer (Section 377) or delivery to a relative or friend (Section 378).

What this means in practice

For the defence advocate. Raise incapacity as soon as it appears; Section 368(1) requires the court to try it "in the first instance". In Prakash Nayi (below) the Supreme Court said there is "not even a need for an application under Section 329". Distinguish two pleas: incapacity to make a defence now (Sections 367–368) and unsoundness of mind at the time of the act (Section 22 BNS). The burden provision for general exceptions is now Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

For the prosecution. In Devidas Loka Rathod (below) the Supreme Court, restating an earlier decision, said that given the appellant's previous history of insanity it was the duty of an honest investigator to subject him to a medical examination immediately and place the evidence before the court (para 9).

For the family. Bail under Section 369(1) depends on a friend's or relative's undertaking; Sections 374(3) and 378 let a relative or friend seek custody on security.

Judgments that still matter

No Supreme Court judgment applying Sections 367 to 378 BNSS was found in the corpus searched. Apart from the changes above, the operative words of the chapter repeat Sections 328 to 339 CrPC as amended in 2009; on a reading of the text, judgments construing those words remain relevant.

Sheila Kaul through Ms. Deepa Kaul v. State through C.B.I., [2013] 10 S.C.R. 231 (2013 INSC 692) — 8 October 2013. T.S. Thakur and Vikramajit Sen JJ.; judgment by Thakur J. A trial court directed a nearly 98-year-old accused, alleged to have senile dementia, to appear in person to answer charges, after a medical board reported that she had no major psychiatric disorder, that senile dementia could not be ruled out, and that she could not comprehend simple questions (para 3); the High Court did not deal with that order. The Supreme Court said that although her application did not "strictly speaking" bring her case under Section 329, it alleged she was incapable of making her defence (para 8), and the High Court's failure to appreciate the medical material made its order unsustainable (para 9). It set aside that part of the order and remitted the matter, expressing no opinion on whether she was of unsound mind under Section 329 (para 10).

Devidas Loka Rathod v. State of Maharashtra, [2018] 7 S.C.R. 767 (2018 INSC 560) — 2 July 2018. A.M. Khanwilkar and Navin Sinha JJ. The Court set aside a murder conviction, holding the appellant entitled to the benefit of Section 84 IPC "because of the preponderance of his medical condition at the time of occurrence" and to acquittal (para 21). It then said it was "necessary to give further directions under Section 335 or 339" so that the appellant "receives proper care and support befitting his right to life under Article 21", and sent its order to the District Legal Services Authority (para 22). Sections 374 and 378 BNSS carry those provisions forward.

Prakash Nayi @ Sen v. State of Goa, [2023] 1 S.C.R. 823 (2023 INSC 24) — 12 January 2023. B.R. Gavai and M.M. Sundresh JJ.; judgment by Sundresh J. It said Chapter XXV, "though procedural in nature, also becomes substantive when it deals with an accused person of unsound mind", and that there is "not even a need for an application under Section 329" (para 15). The provisions aim "to facilitate a person of unsound mind to stand trial" and to treat the accused as having a disability (para 16). Allowing the appeal, it held the appellant entitled to Section 84 IPC and acquitted him (paras 28, 30); it said his later becoming fit to face trial was sufficient for acquittal "as it is indicative of his prior preponderance of probability" (para 27).

Prem Singh v. State of NCT of Delhi, [2023] 5 S.C.R. 800 (2023 INSC 3) — 2 January 2023. Dinesh Maheshwari and Sudhanshu Dhulia JJ. The appellant argued that his trial for murder was vitiated because the trial court did not examine his capacity under Section 329. The Court held that there was "no material on record" and no other reason for which the trial court "would have been obliged to take recourse" to Section 329 (para 25.1.1), that the appellant was neither mentally ill nor of unsound mind in law, so that "neither Section 84 IPC applies ... nor Section 329 CrPC would come to the rescue" (para 27), and dismissed the appeal (para 32).

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial or inquiry pending immediately before 1 July 2024 is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that text, an inquiry into fitness in such a case runs under Sections 328 to 339 CrPC, without the Government-institution requirement for the specialist or the Mental Health Review Board's role. On a reading of Section 358(2) BNS, unsoundness of mind for an act before 1 July 2024 is judged under Section 84 IPC, which Section 22 BNS repeats; see which law applies to an offence before 1 July 2024.

Frequently asked questions

Which BNSS sections replaced CrPC Sections 328 to 339?

Sections 367 to 378 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Chapter XXVII) replaced Chapter XXV of the Code of Criminal Procedure, 1973 from 1 July 2024. The mapping is one to one: 328 to 367, 329 to 368, 330 to 369, and so on to 339 and 378.

What is the main change for an accused of unsound mind under the BNSS?

At the inquiry stage, Section 367(2) BNSS requires the civil surgeon to refer the accused to a psychiatrist or clinical psychologist of a Government hospital or Government medical college; Section 328(1A) CrPC did not say where the specialist must come from. The Medical Board that hears an appeal must now include a faculty member from the nearest Government medical college, and 'mental retardation' is replaced by 'intellectual disability' throughout.

What happens if an accused is unfit to stand trial?

Under Section 368 BNSS, the Magistrate or Court of Session first tries whether the accused is of unsound mind and incapable of making a defence, and refers the accused to a psychiatrist or clinical psychologist. If the accused is incapable and no prima facie case is made out, the accused is discharged; if a prima facie case is made out, the trial is postponed for the period needed for treatment, and the accused is dealt with under Section 369.

Can an accused of unsound mind get bail?

Yes. Section 369(1) BNSS requires release on bail, whether or not the offence is bailable, where the unsoundness of mind or intellectual disability does not need in-patient treatment and a friend or relative undertakes to obtain regular out-patient treatment and to prevent injury to the accused or others. Otherwise the accused is kept where regular psychiatric treatment can be provided and the State Government is informed.

Is fitness to stand trial the same as the insanity defence?

No. Sections 367 and 368 BNSS concern the accused's capacity to make a defence at the time of the inquiry or trial. The defence in Section 22 BNS (formerly Section 84 IPC) concerns unsoundness of mind at the time of the act. In Prem Singh v. State of NCT of Delhi ([2023] 5 S.C.R. 800) the Supreme Court treated the two questions separately and found neither made out.

What happens after an acquittal on the ground of unsoundness of mind?

Section 373 BNSS requires the finding to state specifically whether the accused committed the act. If it says he did, Section 374 requires the court to order detention in safe custody or delivery to a relative or friend on security, and to report the action to the State Government. Detention in a public mental health establishment must follow rules made under the Mental Healthcare Act, 2017.

Who certifies that a detained person is fit to make a defence?

Under Section 376 BNSS, the Inspector-General of Prisons for a person detained in jail, or the Mental Health Review Board constituted under the Mental Healthcare Act, 2017 for a person detained in a public mental health establishment. Section 337 CrPC gave that role to the visitors of the lunatic asylum, or any two of them.

Does the BNSS chapter apply to a trial pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial or inquiry pending immediately before 1 July 2024 continues under the CrPC as if the BNSS had not come into force. On a reading of that text, such a case remains under Sections 328 to 339 CrPC, including the older wording on the specialist referral and the Medical Board.

Related

• Discharge — CrPC 227 and 239 vs BNSS 250 and 262
• Bail in non-bailable offences — CrPC 437 vs BNSS 480
• Examination of the accused — CrPC 313 vs BNSS 351
• Burden of proof — IEA 101–105 vs BSA 104–108
• Legal aid to the accused — CrPC 304 vs BNSS 341
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text, diffed against the official BNSS text): Sections 367 to 378, 531(2)(a).
• Code of Criminal Procedure, 1973 (original India Code text, with footnotes): Sections 328 to 339.
• Bharatiya Nyaya Sanhita, 2023: Section 22. Indian Penal Code, 1860: Section 84. Bharatiya Sakshya Adhiniyam, 2023: Section 108.
• Judgments read (Supreme Court judgment text): Sheila Kaul (2013_10_231_238_EN.md); Devidas Loka Rathod (2018_7_767_780_EN.md); Prem Singh (2023_5_800_860_EN.md); Prakash Nayi (2023_1_823_840_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.