Section 357 of BNSS, 2023 — Procedure Where Accused Does Not Understand Proceedings

Introduction

Section 357 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with a specific situation in which an accused person is not a person of unsound mind but cannot be made to understand the proceedings.

The provision permits the Court to continue with the inquiry or trial despite the accused’s inability to understand the proceedings. However, where a Court other than the High Court ultimately records a conviction, the proceedings must be forwarded to the High Court along with a report explaining the circumstances. The High Court then considers the matter and passes such order as it thinks fit.

The provision substantially carries forward the earlier Section 318 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Section 357

Section 357 applies when an accused person is capable of being regarded as a person who is not of unsound mind, but nevertheless cannot be made to understand the proceedings before the Court.

The inability to understand the proceedings is therefore distinct from a finding that the accused is of unsound mind.

The section provides a procedural mechanism for dealing with such cases while ensuring that a conviction recorded by a Court below the High Court receives consideration by the High Court.

Statutory Basis

Section 357, BNSS, 2023 — Procedure where accused does not understand proceedings

The section provides that where the accused, though not a person of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial.

If the proceedings result in a conviction before a Court other than the High Court, the proceedings must be forwarded to the High Court together with a report of the circumstances of the case.

The High Court then passes such order as it thinks fit.

Object and Purpose

Section 357 serves two principal purposes:

• It prevents the criminal proceeding from necessarily coming to an end merely because the accused cannot be made to understand the proceedings.
• It provides additional High Court supervision where a lower Court convicts such an accused.

The provision therefore attempts to balance the continuation of criminal proceedings with judicial scrutiny of a conviction in these circumstances.

Essential Elements

1. The accused must not be a person of unsound mind

The section expressly applies to an accused who is not a person of unsound mind.

Therefore, Section 357 should not be confused with provisions dealing with an accused who is incapable of making a defence because of unsoundness of mind.

2. The accused cannot be made to understand the proceedings

The Court must be confronted with a situation where the accused cannot be made to understand the proceedings.

The statutory focus is on the accused’s inability to understand the proceedings despite the circumstances of the case.

3. The Court may proceed with the inquiry or trial

The provision gives the Court the authority to proceed with the inquiry or trial.

The language of the section is “may proceed”, indicating that the provision confers procedural discretion on the Court.

4. Special consequence where there is a conviction

If the proceedings before a Court other than the High Court result in a conviction, the proceedings must be forwarded to the High Court.

This forwarding requirement is an important safeguard built into Section 357.

5. Report of the circumstances

The lower Court must forward the proceedings with a report of the circumstances of the case.

The report enables the High Court to understand why the accused could not be made to understand the proceedings and the circumstances in which the inquiry or trial was conducted.

6. High Court passes appropriate order

After receiving the proceedings and report, the High Court must pass such order as it thinks fit.

The section therefore places the final procedural response in the hands of the High Court.

Procedure

The procedure under Section 357 can be understood in the following sequence:

1. The Court finds that the accused is not a person of unsound mind.
2. The accused nevertheless cannot be made to understand the proceedings.
3. The Court may proceed with the inquiry or trial.
4. If the proceedings before a Court other than the High Court result in conviction, the proceedings are forwarded to the High Court.
5. The lower Court sends a report explaining the circumstances of the case.
6. The High Court considers the proceedings and circumstances.
7. The High Court passes such order as it thinks fit.

Powers of the Court

Section 357 gives the Court the power to proceed with the inquiry or trial even though the accused cannot be made to understand the proceedings.

However, the section does not provide an unrestricted power to disregard the accused’s procedural position. Where a lower Court records a conviction, the statutory requirement of forwarding the proceedings to the High Court operates as an important safeguard.

Rights and Fair Trial Considerations

Section 357 must be understood in the broader context of the accused’s right to a fair criminal process.

The inability of an accused to understand proceedings can have a direct bearing on the person’s ability to know the case against them, participate in the proceedings and defend themselves.

Consequently, the statutory power to continue proceedings should not be understood as eliminating the fundamental requirement of a fair trial.

The constitutional guarantee of fair procedure under Article 21 of the Constitution of India remains relevant when applying procedural provisions concerning the accused.

Important Distinction

Section 357 BNSS and Proceedings Against a Person of Unsound Mind

Section 357 specifically deals with an accused who is not a person of unsound mind but cannot be made to understand the proceedings.

This is different from provisions dealing with an accused who is unable to understand or defend the case because of unsoundness of mind.

The two situations should not be treated as identical.

Section 357 BNSS and Trial in Absentia

Section 357 concerns an accused who is present within the proceedings but cannot be made to understand them.

Trial in absentia concerns the continuation of proceedings when the accused is not present before the Court under the statutory conditions governing such trials.

The two provisions therefore operate in different circumstances.

BNSS and CrPC

The corresponding provision under the Code of Criminal Procedure, 1973 was Section 318.

Section 357 BNSS substantially carries forward the substance of Section 318 CrPC. The principal change is the statutory renumbering from Section 318 CrPC to Section 357 BNSS.

The basic procedure remains substantially the same:

• Under the CrPC, Section 318 dealt with an accused who, though not of unsound mind, could not be made to understand the proceedings.
• Under BNSS, Section 357 deals with the same procedural situation.
• The Court may proceed with the inquiry or trial.
• Where a Court other than the High Court records a conviction, the proceedings are forwarded to the High Court with a report of the circumstances.
• The High Court passes such order as it thinks fit.

Thus, Section 357 represents substantial continuity rather than a major procedural departure from the earlier CrPC framework.

Case Law

State v. Gani Mohd.

Judicial decisions under Section 318 CrPC remain relevant to Section 357 BNSS where the statutory language and underlying principle remain substantially similar.

In State v. Gani Mohd., the Delhi High Court considered the safeguards applicable where an accused cannot understand the proceedings. The decision emphasised the importance of establishing the relevant circumstances concerning the accused’s ability to understand the proceedings before a conviction can safely be sustained.

Since the decision was rendered under the CrPC, it should be treated as precedent concerning the earlier provision and as potentially persuasive for interpreting the substantially similar Section 357 BNSS.

Important BNSS Provision

Section 357 — Procedure where accused does not understand proceedings

It provides the statutory mechanism for continuing an inquiry or trial where the accused, although not a person of unsound mind, cannot be made to understand the proceedings.

Constitutional Connection

Section 357 has a connection with Article 21 of the Constitution, particularly the requirement that criminal procedure must satisfy standards of fairness.

A criminal proceeding resulting in conviction must operate consistently with basic principles of natural justice and fair trial. The statutory mechanism under Section 357 should therefore be applied with appropriate regard to the accused’s ability to understand and participate in the proceedings.

Common Confusions

Does Section 357 apply only when the accused is of unsound mind?

No.

The section expressly applies where the accused is not a person of unsound mind but cannot be made to understand the proceedings.

Can the Court continue the trial when the accused cannot understand the proceedings?

Yes.

Section 357 permits the Court to proceed with the inquiry or trial in such circumstances.

What happens if a lower Court convicts the accused?

If a Court other than the High Court records a conviction, the proceedings must be forwarded to the High Court along with a report of the circumstances of the case.

Does the High Court automatically confirm the conviction?

No.

The High Court is required to consider the proceedings and pass such order as it thinks fit.

Is Section 357 a completely new provision under BNSS?

No.

It substantially corresponds to Section 318 CrPC.

Example

Suppose an accused is not legally regarded as a person of unsound mind, but because of a particular condition or circumstance cannot be made to understand the criminal proceedings despite the Court’s efforts.

The Court may proceed with the inquiry or trial under Section 357. If a Court below the High Court ultimately convicts the accused, the proceedings must be sent to the High Court together with a report explaining the circumstances. The High Court then considers the matter and passes an appropriate order.

Topic at a Glance

• Topic: Procedure where accused does not understand proceedings
• BNSS Section: Section 357
• Chapter: General Provisions as to Inquiries and Trials
• Core rule: Court may proceed with the inquiry or trial
• Condition: Accused is not a person of unsound mind but cannot be made to understand the proceedings
• Lower Court conviction: Proceedings must be forwarded to the High Court
• Required document: Report of the circumstances of the case
• High Court’s role: Pass such order as it thinks fit
• Corresponding CrPC provision: Section 318 CrPC
• Nature of change: Substantial continuity with the earlier CrPC provision

Quick Revision

• Section 357 BNSS deals with an accused who is not a person of unsound mind but cannot be made to understand the proceedings.
• The Court may proceed with the inquiry or trial.
• If a Court other than the High Court records a conviction, the proceedings must be forwarded to the High Court.
• The lower Court must also send a report of the circumstances of the case.
• The High Court passes such order as it thinks fit.
• The corresponding provision under the CrPC was Section 318.
• Section 357 is substantially a continuation of the earlier CrPC framework.
• The provision must be applied consistently with the accused’s fair-trial protections.

ALSO READ: Section 356 – Inquiry, trial or judgment in absentia of proclaimed offender

Conclusion

Section 357 BNSS provides a specific procedural mechanism for cases where an accused is not a person of unsound mind but cannot be made to understand the proceedings. While permitting the Court to continue the inquiry or trial, it introduces High Court scrutiny where a lower Court records a conviction. The provision substantially preserves the approach formerly contained in Section 318 CrPC while placing it within the procedural framework of the BNSS.