Section 367 of BNSS, 2023 — Procedure in Case of Accused Being Person of Unsound Mind

Introduction

Section 367 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure to be followed when, during an inquiry before a Magistrate, there is reason to believe that the accused is a person of unsound mind and, as a result, is incapable of making his or her defence.

The provision requires the Magistrate to inquire into the accused’s mental condition and obtain medical assessment. It also introduces the involvement of a psychiatrist or clinical psychologist and provides a mechanism for appeal before a Medical Board.

The central concern of Section 367 is to ensure that an accused who is incapable of defending himself or herself because of unsoundness of mind or intellectual disability is not subjected to an unfair criminal proceeding.

Meaning of Section 367

Section 367 applies when a Magistrate conducting an inquiry has reason to believe that:

• the accused is a person of unsound mind; and
• because of that condition, the accused is incapable of making his or her defence.

The Magistrate must then inquire into the accused’s mental condition and arrange for medical examination.

The provision distinguishes between unsoundness of mind and intellectual disability, and prescribes different consequences depending upon the medical findings and whether the accused is capable of entering a defence.

Statutory Basis

Section 367 forms part of Chapter XXVII of the BNSS, which deals with provisions relating to accused persons of unsound mind.

The provision contains five sub-sections dealing with:

1. preliminary inquiry and medical examination;
2. referral to a psychiatrist or clinical psychologist and appeal to a Medical Board;
3. treatment of the accused while examination and inquiry are pending;
4. procedure where the accused is found to be of unsound mind and incapable of entering defence; and
5. procedure where the accused has intellectual disability and is incapable of entering defence.

Essential Elements

1. Magistrate Must Have Reason to Believe That the Accused Is of Unsound Mind

The provision begins when a Magistrate holding an inquiry has reason to believe that the accused is a person of unsound mind.

The Magistrate must also have reason to believe that the accused is consequently incapable of making his or her defence.

Thus, mere existence of a mental health condition is not by itself sufficient. The issue relevant to the criminal proceeding is whether the condition affects the accused’s ability to defend himself or herself.

2. Magistrate Must Inquire Into the Unsoundness of Mind

Once the required reason to believe exists, the Magistrate must inquire into the fact of the accused’s unsoundness of mind.

This is a judicial inquiry into the accused’s mental condition.

3. Medical Examination by the Civil Surgeon or Other Authorised Medical Officer

The Magistrate must cause the accused to be examined by:

• the civil surgeon of the district; or
• another medical officer directed by the State Government.

The Magistrate must thereafter examine the civil surgeon or other medical officer as a witness and reduce that examination to writing.

This provides a formal medical basis for determining the accused’s condition.

Psychiatrist or Clinical Psychologist

4. Referral After Finding of Unsoundness of Mind

If the civil surgeon finds the accused to be a person of unsound mind, the accused must be referred to a psychiatrist or clinical psychologist of a Government hospital or Government medical college.

The purpose of the referral is care, treatment and prognosis of the accused’s condition.

The psychiatrist or clinical psychologist must inform the Magistrate whether the accused is suffering from:

• unsoundness of mind; or
• intellectual disability.

Appeal Before Medical Board

Section 367 provides an important safeguard for the accused.

If the accused is aggrieved by the information given by the psychiatrist or clinical psychologist to the Magistrate, the accused may prefer an appeal before a Medical Board.

The Medical Board consists of:

• the head of the psychiatry unit in the nearest Government hospital; and
• a faculty member in psychiatry in the nearest Government medical college.

This gives the accused an opportunity to challenge the medical assessment.

Procedure Pending Examination and Inquiry

While the medical examination and inquiry are pending, the Magistrate may deal with the accused in accordance with Section 369 of the BNSS.

Section 369 deals with the release and treatment of a person found incapable of entering a defence because of unsoundness of mind or intellectual disability.

When Accused Is Found to Be of Unsound Mind

If the Magistrate receives information that the accused is a person of unsound mind, the Magistrate must make a further determination.

The Magistrate must determine whether the unsoundness of mind renders the accused incapable of entering defence.

This distinction is important.

A person may have unsoundness of mind, but the statutory procedure under Section 367 specifically focuses on whether that condition makes the accused incapable of defending himself or herself.

When Accused Is Incapable of Entering Defence

If the accused is found incapable of entering a defence because of unsoundness of mind, the Magistrate must record a finding to that effect.

The Magistrate then examines the record of the prosecution evidence.

The advocate representing the accused must be heard, but the accused himself or herself is not to be questioned at this stage.

When There Is No Prima Facie Case

If, after examining the prosecution evidence and hearing the accused’s advocate, the Magistrate finds that there is no prima facie case against the accused, the Magistrate must discharge the accused instead of merely postponing the inquiry.

The accused is then dealt with in accordance with Section 369.

This prevents an accused from being kept in prolonged proceedings where the prosecution has not even established a prima facie case.

When There Is a Prima Facie Case

If the Magistrate finds that a prima facie case is made out against the accused and the accused is incapable of entering a defence because of unsoundness of mind, the Magistrate must postpone the proceedings.

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

The accused is then dealt with in accordance with Section 369.

When Accused Has Intellectual Disability

Section 367 separately addresses a situation where the Magistrate is informed that the accused is a person with intellectual disability.

The Magistrate must determine whether the intellectual disability makes the accused incapable of entering a defence.

If the accused is found incapable of entering a defence because of intellectual disability:

• the Magistrate shall order closure of the inquiry; and
• the accused shall be dealt with in accordance with Section 369.

This is different from the procedure applicable where unsoundness of mind is accompanied by a prima facie case.

Procedure Under Section 367

The procedure can be understood in the following stages:

Step 1: Reason to Believe

The Magistrate has reason to believe that the accused is of unsound mind and consequently incapable of making a defence.

Step 2: Inquiry by Magistrate

The Magistrate inquires into the accused’s unsoundness of mind.

Step 3: Medical Examination

The accused is examined by the district civil surgeon or another medical officer authorised by the State Government.

Step 4: Medical Officer Is Examined

The Magistrate examines the medical officer as a witness and reduces the examination to writing.

Step 5: Referral

If the civil surgeon finds the accused to be of unsound mind, the accused is referred to a psychiatrist or clinical psychologist at a Government hospital or Government medical college.

Step 6: Medical Assessment

The psychiatrist or clinical psychologist informs the Magistrate whether the accused is suffering from unsoundness of mind or intellectual disability.

Step 7: Medical Appeal

If the accused is aggrieved by that information, the accused may appeal before the Medical Board constituted under Section 367.

Step 8: Determination of Capacity to Defend

The Magistrate determines whether the condition actually makes the accused incapable of entering a defence.

Step 9: Prima Facie Case Is Considered

Where the accused is incapable because of unsoundness of mind, the Magistrate examines the prosecution evidence to determine whether a prima facie case exists.

Step 10: Discharge or Postponement

If there is no prima facie case, the accused is discharged and dealt with under Section 369.

If a prima facie case exists, the proceedings are postponed for the period required for treatment, and the accused is dealt with under Section 369.

Step 11: Intellectual Disability

Where the accused is found to have intellectual disability and is incapable of entering a defence, the Magistrate orders closure of the inquiry and deals with the accused under Section 369.

Example

Suppose A is facing an inquiry before a Magistrate. During the inquiry, the Magistrate has reason to believe that A is of unsound mind and is consequently unable to defend himself.

The Magistrate orders a medical examination by the district civil surgeon.

The civil surgeon finds A to be of unsound mind and refers him to a psychiatrist or clinical psychologist at a Government hospital or Government medical college.

The psychiatrist or clinical psychologist informs the Magistrate about A’s condition.

The Magistrate then determines whether A’s condition makes him incapable of entering a defence.

If A is incapable and the Magistrate finds that the prosecution has not established a prima facie case, A may be discharged.

If a prima facie case exists, the inquiry is postponed for the period required for treatment, and A is dealt with under Section 369.

Important Distinction: Unsoundness of Mind and Incapacity to Defend

These concepts should not be treated as identical.

Section 367 requires the Magistrate to determine whether the accused’s unsoundness of mind actually makes the accused incapable of entering a defence.

Therefore, the existence of unsoundness of mind does not by itself conclude the procedural inquiry.

The accused’s capacity to participate in the defence remains a separate question for determination by the Magistrate.

Important Distinction: Section 367 and Section 368

Section 367 applies when a Magistrate conducting an inquiry has reason to believe that the accused is of unsound mind and incapable of making a defence.

Section 368 applies when, during the trial before a Magistrate or Court of Session, the accused appears to be of unsound mind and incapable of making a defence.

Thus, the principal distinction is the procedural stage and the court before which the matter is pending.

Relationship with Section 369

Section 367 repeatedly connects the procedure for an accused of unsound mind with Section 369, which deals with release of a person of unsound mind pending investigation or trial.

Where Section 367 results in a finding that the accused is incapable of entering a defence because of unsoundness of mind or intellectual disability, Section 369 provides the mechanism for dealing with the accused.

Therefore, Sections 367 and 369 should be read together.

BNSS and CrPC

Section 367 of the BNSS corresponds broadly to Section 328 of the Code of Criminal Procedure, 1973.

However, the BNSS provision is not merely a renumbering of the earlier provision.

The terminology has been updated from the earlier reference to an accused being a “lunatic” to the expression “person of unsound mind.”

The BNSS also expressly incorporates:

• referral to a psychiatrist or clinical psychologist;
• care, treatment and prognosis;
• Government hospitals and Government medical colleges;
• assessment of intellectual disability;
• an appeal mechanism before a Medical Board.

Therefore, the BNSS framework contains important procedural details beyond the basic structure of the corresponding CrPC provision.

Common Confusions

Is every person suffering from a mental illness incapable of defending himself?

No.

Section 367 requires the Magistrate to determine whether the accused’s unsoundness of mind makes the accused incapable of entering a defence.

Is a medical examination sufficient by itself?

No.

The Magistrate must consider the medical assessment and make the required judicial determination regarding the accused’s capacity to enter a defence.

Can the accused challenge the psychiatric or clinical assessment?

Yes.

Section 367 permits an aggrieved accused to prefer an appeal before the specified Medical Board.

What happens if there is no prima facie case?

The accused is discharged rather than merely having the inquiry postponed, and the accused is dealt with under Section 369.

What happens if there is a prima facie case?

Where the accused is incapable of entering a defence because of unsoundness of mind, the proceedings are postponed for the period considered necessary for treatment, and the accused is dealt with under Section 369.

Does Section 367 apply to a trial before the Court of Session?

No.

Section 367 specifically concerns an inquiry being held by a Magistrate. The procedure where a person of unsound mind is tried before a Magistrate or Court of Session is dealt with separately under Section 368.

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 367
• Chapter: Chapter XXVII
• Title: Procedure in case of accused being person of unsound mind
• Corresponding CrPC provision: Section 328
• Stage: Inquiry before a Magistrate
• Trigger: Reason to believe that the accused is of unsound mind and consequently incapable of making a defence
• Initial medical authority: Civil surgeon or other authorised medical officer
• Further assessment: Psychiatrist or clinical psychologist of a Government hospital or Government medical college
• Appeal: Medical Board
• Key determination: Whether the accused is incapable of entering a defence
• No prima facie case: Accused is discharged
• Prima facie case: Inquiry is postponed for treatment
• Intellectual disability: If it renders the accused incapable of entering a defence, the inquiry is closed and Section 369 applies

Quick Revision

• Section 367 BNSS deals with an accused person who is suspected to be of unsound mind and incapable of making a defence.
• It applies to an inquiry before a Magistrate.
• The Magistrate must inquire into the accused’s mental condition.
• The accused must be examined by the district civil surgeon or another authorised medical officer.
• If unsoundness of mind is found, the accused is referred to a psychiatrist or clinical psychologist at a Government hospital or Government medical college.
• The accused can challenge the psychiatric or clinical assessment before the specified Medical Board.
• The Magistrate must separately determine whether the accused is incapable of entering a defence.
• If there is no prima facie case, the accused is discharged.
• If there is a prima facie case, the inquiry is postponed for the treatment period considered necessary.
• Where intellectual disability makes the accused incapable of entering a defence, the inquiry is closed.
• Section 369 provides the mechanism for dealing with an accused found incapable of entering a defence.
• Section 367 corresponds broadly to Section 328 CrPC but contains updated terminology and additional safeguards and procedures.

ALSO READ: Section 366 – Court to be open

Conclusion

Section 367 of the BNSS establishes a structured procedure for protecting an accused who may be unable to defend himself or herself because of unsoundness of mind or intellectual disability. It combines judicial inquiry, medical assessment, specialist evaluation and a Medical Board mechanism for challenge. Most importantly, the provision requires the Magistrate to determine whether the accused’s condition actually makes the accused incapable of entering a defence before deciding whether the inquiry should be closed, the accused discharged, or the proceedings postponed for treatment.