Section 374 of BNSS, 2023 — Person Acquitted on Ground of Unsoundness of Mind to Be Detained in Safe Custody

Introduction

Section 374 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the consequences that follow when an accused person is acquitted on the ground of unsoundness of mind, but the Court has specifically found that the accused committed the act alleged.

The provision empowers the Magistrate or Court to either order the person to be detained in safe custody or, subject to prescribed safeguards, deliver the person to a relative or friend for proper care.

The provision is intended to balance the acquittal of a person who lacked the required mental capacity with the need to protect the person and others from possible harm.

Meaning of Section 374

Section 374 applies where:

• the accused has been acquitted on the ground of unsoundness of mind;
• the judgment specifically records that the accused committed the act alleged; and
• the act would have constituted an offence but for the incapacity arising from unsoundness of mind.

In such circumstances, the Magistrate or Court must deal with the person in accordance with Section 374.

Statutory Basis

Section 374 of BNSS, 2023 provides the procedure concerning the custody or care of a person acquitted on the ground of unsoundness of mind.

The provision contains four important parts:

• Sub-section (1) deals with safe custody or delivery to a relative or friend.
• Sub-section (2) regulates detention in a public mental health establishment.
• Sub-section (3) prescribes safeguards where the person is delivered to a relative or friend.
• Sub-section (4) requires the Magistrate or Court to report the action taken to the State Government.

Object and Purpose

The object of Section 374 is not to punish a person who has been acquitted.

Its purpose is to provide a protective arrangement where the Court has found that:

• the accused actually committed the alleged act; and
• the accused was incapable of criminal responsibility because of unsoundness of mind.

The provision therefore addresses the consequences following such an acquittal while providing safeguards for the accused, relatives, and other persons who may be affected by the accused’s condition.

Essential Conditions

1. Finding that the accused committed the act

The first requirement is a specific finding under Section 373 that the accused committed the act alleged.

Section 373 requires the judgment of acquittal on the ground of unsoundness of mind to state specifically whether the accused committed the act or not.

Section 374 becomes relevant where that finding is that the accused did commit the act.

2. The act must otherwise constitute an offence

The provision applies where the act would have constituted an offence but for the incapacity found in the accused.

Thus, there must be a connection between:

• the act committed by the accused;
• the incapacity arising from unsoundness of mind; and
• the resulting acquittal.

3. Order regarding custody or care

Where the statutory conditions are satisfied, the Magistrate or Court must make an appropriate order concerning the person’s custody or care.

The two alternatives are:

• detention in safe custody; or
• delivery to a relative or friend, subject to the safeguards contained in Section 374.

Powers of the Magistrate or Court

Safe Custody

Under Section 374(1)(a), the Magistrate or Court may order the person to be detained in safe custody in such place and manner as it considers appropriate.

The objective is protective custody rather than punishment.

Delivery to a Relative or Friend

Under Section 374(1)(b), instead of ordering detention in safe custody, the Magistrate or Court may order the person to be delivered to a relative or friend.

However, this option is subject to the requirements of sub-section (3).

Detention in a Public Mental Health Establishment

Section 374(2) places an important restriction on detention in a public mental health establishment.

An order for detention in a public mental health establishment cannot be made merely as an ordinary safe-custody order.

It must be made in accordance with the rules framed by the State Government under the Mental Healthcare Act, 2017.

This ensures that detention in a public mental health establishment is governed by the applicable mental healthcare framework.

Delivery to Relative or Friend

Section 374(3) imposes safeguards before the accused can be delivered to a relative or friend.

Such delivery can take place only:

• upon an application by the relative or friend; and
• after that person gives security to the satisfaction of the Magistrate or Court.

The security must ensure that the person delivered will be:

• properly taken care of;
• prevented from causing injury to himself or herself;
• prevented from causing injury to any other person; and
• produced for inspection by the officer designated by the State Government at the times and places directed by the State Government.

Duties of the Relative or Friend

A relative or friend who receives the person under Section 374 assumes important responsibilities.

The security given to the Court must ensure:

• proper care of the person;
• prevention of self-harm;
• prevention of harm to others; and
• compliance with government directions concerning inspection.

The delivery of the accused to a relative or friend is therefore not an unconditional release.

Report to the State Government

Section 374(4) requires the Magistrate or Court to report to the State Government the action taken under sub-section (1).

Therefore, the Court’s responsibility does not end with making an order for detention or delivery to a relative or friend.

The action taken must also be reported to the State Government.

Procedure Under Section 374

The provision can be understood through the following sequence:

1. The accused is acquitted on the ground of unsoundness of mind.
2. The judgment records that the accused committed the alleged act.
3. The Court considers whether the act would have constituted an offence but for the incapacity found.
4. The Court orders safe custody or delivery to a relative or friend.
5. If delivery to a relative or friend is ordered, the statutory security requirements must be satisfied.
6. If detention in a public mental health establishment is contemplated, the applicable State Government rules under the Mental Healthcare Act, 2017 must be followed.
7. The Magistrate or Court reports the action taken to the State Government.

Important Distinctions

Acquittal vs Release Without Conditions

An acquittal under the ground of unsoundness of mind does not necessarily mean that the person must simply be released without further proceedings.

Where the Court finds that the accused committed the act, Section 374 provides for protective custody or supervised care.

Punishment vs Safe Custody

Safe custody under Section 374 is not a criminal punishment.

The person has been acquitted. The custody or care arrangement arises because of the finding concerning unsoundness of mind and the need for protection.

Safe Custody vs Delivery to Relative or Friend

Safe custody involves detention in a place and manner determined by the Magistrate or Court.

Delivery to a relative or friend involves placing the person under the care of that relative or friend, but only after the statutory safeguards and security requirements have been satisfied.

Section 373 and Section 374

Section 373 and Section 374 should be read together.

Section 373 requires the Court to state specifically whether the accused committed the alleged act.

Section 374 deals with the consequences where the finding is that the accused did commit the act.

Thus, the finding under Section 373 forms the basis for the subsequent procedure under Section 374.

Exceptions and Limitations

Public Mental Health Establishment

A person cannot simply be sent to a public mental health establishment under Section 374(1)(a) without complying with the applicable rules made by the State Government under the Mental Healthcare Act, 2017.

Delivery to Relative or Friend

The Court cannot deliver the person to a relative or friend merely because the relative or friend is willing to take custody.

The relative or friend must apply and provide security satisfying the Court about proper care, prevention of harm, and compliance with inspection requirements.

BNSS and CrPC

Section 374 of BNSS corresponds to Section 335 of the Code of Criminal Procedure, 1973.

The core principle has substantially been carried forward into BNSS.

The principal statutory changes include:

• the provision has been renumbered from Section 335 CrPC to Section 374 BNSS;
• the language has been updated to use the terminology of persons of unsound mind;
• references concerning mental health establishments have been aligned with the Mental Healthcare Act, 2017;
• the BNSS provision specifically refers to rules made by the State Government under the Mental Healthcare Act, 2017.

The underlying procedural principle remains substantially similar: where a person is acquitted on the ground of unsoundness of mind but is found to have committed the act, the Court must provide for safe custody or an appropriate supervised arrangement.

Relationship with the Mental Healthcare Act, 2017

Section 374 expressly connects detention in a public mental health establishment with the Mental Healthcare Act, 2017.

Therefore, BNSS does not operate in isolation when a public mental health establishment is involved.

The applicable State Government rules under the mental healthcare framework must also be complied with.

Relationship with BNS and BSA

The three criminal laws have distinct functions:

• Bharatiya Nyaya Sanhita, 2023 (BNS) deals with substantive criminal offences and criminal liability.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework.
• Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 374 is a procedural provision. It operates after the Court has reached the relevant finding concerning unsoundness of mind and the commission of the alleged act.

Case Law

Judicial decisions under the corresponding CrPC provision may remain relevant because Section 374 substantially carries forward the earlier statutory framework.

However, cases decided under the CrPC should be used with care where the BNSS wording or mental healthcare framework differs.

The application of the BNSS provisions concerning persons of unsound mind is also developing under the new procedural regime.

Example

A is accused of causing serious injury to B.

The Court finds that A actually committed the act. However, it also finds that, at the time of the act, A was suffering from unsoundness of mind and was incapable of understanding the nature of the act or that it was wrong or contrary to law.

A is acquitted on that ground.

Because the judgment records that A committed the act, Section 374 becomes applicable.

The Court may order A to be detained in safe custody or, subject to the statutory safeguards, deliver A to a relative or friend.

If A is delivered to a relative, that relative must provide the required security concerning A’s care, prevention of harm and compliance with government directions.

Common Confusions

Does Section 374 impose a punishment after acquittal?

No.

The person has been acquitted. The provision concerns protective custody or supervised care and is not a sentence of imprisonment.

Is detention under Section 374 automatic in every acquittal based on unsoundness of mind?

No.

Section 374 becomes relevant where the finding states that the accused committed the act alleged and the act would otherwise have constituted an offence but for the incapacity found.

Can the person be delivered to a relative or friend?

Yes.

But the relative or friend must apply and provide security satisfying the Magistrate or Court regarding proper care, prevention of injury and compliance with inspection requirements.

Can the Court directly order detention in a public mental health establishment?

The Court must comply with the applicable State Government rules made under the Mental Healthcare Act, 2017.

Must the Court inform the State Government?

Yes.

Section 374(4) requires the Magistrate or Court to report the action taken under sub-section (1) to the State Government.

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.
• Section 374 — Person acquitted on ground of unsoundness of mind to be detained in safe custody.
• Section 375 — Power of State Government to empower officer in charge to discharge.
• Section 377 — Procedure where person of unsound mind detained is declared fit to be released.
• Section 378 — Delivery of person of unsound mind to care of relative or friend.

Topic at a Glance

• Topic: Person acquitted on ground of unsoundness of mind to be detained in safe custody
• BNSS Section: Section 374
• Trigger: Finding that the accused committed the alleged act
• Condition: The act would otherwise have constituted an offence but for the incapacity found
• Main options: Safe custody or delivery to a relative or friend
• Public mental health establishment: Subject to State Government rules under the Mental Healthcare Act, 2017
• Relative or friend: Application and security required
• Security: Proper care, prevention of injury and compliance with inspection directions
• Reporting duty: Action must be reported to the State Government
• Corresponding CrPC provision: Section 335

Quick Revision

• Section 374 BNSS deals with a person acquitted on the ground of unsoundness of mind.
• It applies where the Court finds that the accused committed the alleged act.
• The act must otherwise have constituted an offence but for the incapacity found.
• The Court may order safe custody or delivery to a relative or friend.
• Delivery to a relative or friend requires an application and security.
• The security must ensure proper care and prevention of injury to the person or others.
• Detention in a public mental health establishment must comply with applicable State Government rules under the Mental Healthcare Act, 2017.
• The Court must report the action taken to the State Government.
• Section 374 BNSS corresponds substantially to Section 335 CrPC.
• Section 373 and Section 374 should be read together: Section 373 concerns the finding regarding commission of the act, while Section 374 deals with the consequences of that finding.

ALSO READ: Section 373 – Judgment of acquittal on ground of unsoundness of mind

Conclusion

Section 374 BNSS establishes the protective procedure that follows an acquittal on the ground of unsoundness of mind where the Court nevertheless finds that the accused committed the alleged act. It does not impose criminal punishment after acquittal. Instead, it provides a structured mechanism for safe custody or supervised care, while requiring safeguards for the accused and oversight by the State Government.