Section 368 of BNSS, 2023 — Procedure in Case of Person of Unsound Mind Tried Before Court

Introduction

Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed when, during a trial before a Magistrate or Court of Session, the accused appears to be a person of unsound mind and is incapable of making his or her defence.

The provision ensures that a person who is unable to understand or participate in the trial because of unsoundness of mind is not subjected to an unfair criminal proceeding.

Section 368 is closely connected with Section 367. While Section 367 deals with an accused of unsound mind during an inquiry before a Magistrate, Section 368 deals with the situation when the issue arises during a trial before a Magistrate or Court of Session.

Meaning of Section 368

Section 368 applies when, during a trial, the accused appears to be:

• a person of unsound mind; and
• consequently incapable of making his or her defence.

In such circumstances, the Court must inquire into the accused’s mental condition and arrange for the necessary medical examination.

The Court must determine whether the accused is actually incapable of defending himself or herself before deciding how the trial should proceed.

Statutory Basis

Section 368 is titled “Procedure in case of person of unsound mind tried before Court.”

The provision establishes a procedure involving:

• inquiry into the accused’s mental condition;
• medical examination;
• examination by a psychiatrist or clinical psychologist where required;
• consideration of whether the accused is capable of entering a defence;
• consideration of the prosecution evidence where necessary;
• discharge where no prima facie case exists; and
• postponement of the trial where a prima facie case exists but the accused is incapable of defending himself or herself.

When Does Section 368 Apply?

The provision applies when the accused is already being tried before:

• a Magistrate; or
• a Court of Session.

During the trial, the Court must have reason to believe that the accused is of unsound mind and consequently incapable of making a defence.

This distinguishes Section 368 from Section 367, which applies to an inquiry before a Magistrate.

Essential Elements

1. Trial Must Be Pending

There must be an ongoing trial before a Magistrate or Court of Session.

2. Court Must Have Reason to Believe That the Accused Is of Unsound Mind

The Court must have reason to believe that the accused is a person of unsound mind.

3. Unsoundness Must Affect the Ability to Defend

The relevant question is whether the accused’s condition makes the accused incapable of making or entering a defence.

The mere existence of a mental condition does not automatically mean that the accused is incapable of defending himself or herself.

4. Medical Examination

The Court must arrange for the accused to be examined by the appropriate medical authority.

Where necessary, the accused is referred for assessment by a psychiatrist or clinical psychologist.

5. Court Determines the Consequence

After considering the medical findings and the circumstances of the case, the Court determines whether the accused is capable of entering a defence and how the trial should proceed.

Procedure Under Section 368

Step 1: Trial Is in Progress

The accused is being tried before a Magistrate or Court of Session.

Step 2: Court Forms a Reason to Believe

During the trial, the Court has reason to believe that the accused is of unsound mind and consequently incapable of making a defence.

Step 3: Inquiry Into Mental Condition

The Court conducts an inquiry into the accused’s mental condition.

Step 4: Medical Examination

The accused is examined by the appropriate medical authority.

The medical examination is used to assist the Court in determining the accused’s mental condition and ability to participate in the proceedings.

Step 5: Specialist Assessment

Where the medical examination indicates unsoundness of mind, the accused may be referred to a psychiatrist or clinical psychologist in accordance with the statutory procedure.

Step 6: Court Determines Capacity to Defend

The Court considers whether the accused is incapable of entering a defence because of unsoundness of mind.

Step 7: Prosecution Evidence Is Considered

Where the accused is found incapable of entering a defence, the Court considers the prosecution material to determine whether a prima facie case exists.

Step 8: No Prima Facie Case

If there is no prima facie case against the accused, the accused is discharged.

Step 9: Prima Facie Case Exists

If a prima facie case exists but the accused remains incapable of entering a defence, the trial is postponed for the period considered necessary for treatment.

The accused is dealt with according to the applicable provisions concerning release and treatment of persons of unsound mind.

Medical Examination and Specialist Assessment

Section 368 incorporates the medical assessment mechanism used for determining the accused’s mental condition.

The purpose of medical assessment is not simply to establish whether the accused has a mental disorder.

The Court must ultimately consider whether the accused’s condition makes him or her incapable of entering a defence.

This distinction is essential because criminal proceedings must be based on the accused’s actual capacity to participate in the trial.

What Happens If There Is No Prima Facie Case?

If the Court finds that the accused is incapable of entering a defence and, after considering the prosecution evidence, concludes that there is no prima facie case, the accused is discharged.

The case therefore does not remain pending indefinitely merely because the accused is unable to participate in the proceedings.

What Happens If There Is a Prima Facie Case?

If a prima facie case exists against the accused, but the accused is incapable of entering a defence because of unsoundness of mind, the Court postpones the trial.

The postponement continues for the period considered necessary by the psychiatrist or clinical psychologist for treatment of the accused.

The accused is then dealt with under the applicable provisions concerning release and treatment.

Example

Suppose A is being tried before a Court of Session.

During the trial, the Court observes circumstances indicating that A may be of unsound mind and may be incapable of understanding or participating in the defence.

The Court orders a medical assessment.

The medical assessment indicates that A is of unsound mind and incapable of entering a defence.

The Court then considers the prosecution evidence.

If there is no prima facie case against A, A is discharged.

If a prima facie case exists, the Court postpones the trial for the period considered necessary for A’s treatment and deals with A according to the applicable provisions governing persons of unsound mind.

Intellectual Disability

The BNSS also recognises intellectual disability separately from unsoundness of mind.

Where the accused is found to have intellectual disability and is incapable of entering a defence, the applicable procedure provides for closure of the proceedings and treatment under the relevant provision concerning persons incapable of entering a defence.

Therefore, the Court must distinguish between:

• unsoundness of mind; and
• intellectual disability.

The central procedural question remains whether the accused is capable of entering a defence.

Section 368 and Fair Trial

The provision protects the fairness of criminal proceedings.

An accused must have a meaningful opportunity to understand the proceedings and participate in the defence.

If the accused is genuinely incapable of doing so because of unsoundness of mind, continuing the trial without addressing that incapacity could undermine the fairness of the proceeding.

Section 368 therefore provides a structured mechanism for:

• identifying the issue;
• obtaining medical assistance;
• determining the accused’s capacity;
• protecting the accused where necessary; and
• allowing the proceedings to continue or resume when legally appropriate.

Important Distinction: Section 367 and Section 368

This is one of the most important distinctions to remember.

Section 367

Section 367 — Procedure in case of accused being person of unsound mind

It applies when a Magistrate is conducting an inquiry and has reason to believe that the accused is of unsound mind and consequently incapable of making a defence.

Section 368

Section 368 — Procedure in case of person of unsound mind tried before Court

It applies when the accused is being tried before a Magistrate or Court of Session and appears to be of unsound mind and incapable of making a defence.

Simple Formula

Inquiry before Magistrate → Section 367

Trial before Magistrate or Court of Session → Section 368

Relationship with Section 369

Section 368 must also be read with Section 369, which deals with the release of a person of unsound mind pending investigation or trial.

Where the accused is found incapable of entering a defence because of unsoundness of mind, Section 369 becomes relevant for determining how the accused is to be dealt with during the period when the proceedings cannot effectively continue.

Thus:

Section 368 → determines the procedural position during trial

Section 369 → deals with release and treatment

BNSS and CrPC

Section 368 of the BNSS corresponds broadly to Section 329 of the Code of Criminal Procedure, 1973 (CrPC).

The BNSS continues the basic principle that where an accused appears to be of unsound mind and incapable of making a defence during a trial, the Court must inquire into the condition and follow the prescribed procedure rather than simply continuing the trial without addressing the accused’s incapacity.

The BNSS framework also incorporates updated terminology and provisions relating to psychiatric and clinical assessment.

Common Confusions

Does Section 368 apply only to the Court of Session?

No.

It applies when the accused is being tried before a Magistrate or Court of Session.

Does the existence of unsoundness of mind automatically end the trial?

No.

The Court must determine whether the accused is actually incapable of entering a defence and then follow the statutory procedure.

What if there is no prima facie case?

The accused is discharged.

What if there is a prima facie case but the accused cannot defend himself?

The trial is postponed for the period considered necessary for treatment, and the accused is dealt with according to the applicable provisions.

Is Section 368 the same as Section 367?

No.

Section 367 applies during an inquiry before a Magistrate, while Section 368 applies during a trial before a Magistrate or Court of Session.

Important BNSS Provisions

• Section 367: Procedure in case of accused being person of unsound mind.
• Section 368: Procedure in case of person of unsound mind tried before Court.
• Section 369: Release of person of unsound mind pending investigation or trial.
• Section 370: Resumption of inquiry or trial.
• Section 371: Procedure on accused appearing before Magistrate or Court.
• Section 372: When accused appears to have been of sound mind.
• Section 373: Judgment of acquittal on ground of unsoundness of mind.

Topic at a Glance

• BNSS Section: Section 368
• Title: Procedure in case of person of unsound mind tried before Court
• Corresponding CrPC provision: Section 329
• Stage: Trial
• Courts covered: Magistrate or Court of Session
• Trigger: Accused appears to be of unsound mind and consequently incapable of making a defence
• Primary action: Court inquires into the accused’s mental condition
• Medical assessment: Conducted according to the statutory procedure
• No prima facie case: Accused is discharged
• Prima facie case exists: Trial is postponed where accused remains incapable of entering a defence
• Treatment: Relevant provisions concerning release and treatment apply
• Key distinction: Section 367 concerns inquiry; Section 368 concerns trial

Quick Revision

• Section 368 BNSS applies when a person of unsound mind is being tried before a Magistrate or Court of Session.
• The Court must have reason to believe that the accused is of unsound mind and consequently incapable of making a defence.
• The Court must inquire into the accused’s mental condition.
• Medical and specialist assessment may be obtained.
• The Court must determine whether the accused is actually incapable of entering a defence.
• If there is no prima facie case, the accused is discharged.
• If a prima facie case exists but the accused is incapable of defending himself or herself, the trial is postponed for the necessary treatment period.
• The accused is dealt with under the provisions relating to persons of unsound mind.
• Section 368 corresponds broadly to Section 329 CrPC.
• Section 367 = inquiry; Section 368 = trial.

ALSO READ: Section 367 – Procedure in case of accused being person of unsound mind

Conclusion

Section 368 of the BNSS provides a safeguard for an accused who becomes incapable of defending himself or herself because of unsoundness of mind during a criminal trial. It requires the Court to investigate the accused’s condition rather than continuing the trial without addressing the incapacity. Where no prima facie case exists, the accused is discharged; where a prima facie case exists, the trial may be postponed to allow necessary treatment. The provision therefore balances the interests of justice, the rights of the accused and the need for a fair criminal trial.