Section 369 of BNSS, 2023 — Release of Person of Unsound Mind Pending Investigation or Trial

Introduction

Section 369 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the release and care of a person of unsound mind who is unable to defend himself or herself because of unsoundness of mind or intellectual disability.

The provision becomes relevant after the Court or Magistrate has found that the accused is incapable of entering a defence. It lays down the circumstances in which such a person may be released, the conditions that may be imposed on the release, and the circumstances in which the person may instead be kept in a safe custody or appropriate facility.

The primary objective is to balance the protection and treatment of the accused with the interests of public safety and the proper administration of criminal justice.

Meaning of Section 369

Section 369 provides the procedure for dealing with a person who has been found incapable of entering a defence because of:

• unsoundness of mind; or
• intellectual disability.

The Court considers whether the person can safely be released.

If release is considered appropriate, the person may be released into the care of a relative or friend, subject to the statutory safeguards and conditions.

If release is not considered appropriate, the person may be dealt with in accordance with the provisions concerning safe custody and treatment.

When Does Section 369 Apply?

Section 369 becomes relevant when an accused person has been found to be incapable of entering a defence because of unsoundness of mind or intellectual disability.

It may therefore follow proceedings under:

• Section 367 — where the issue arises during an inquiry before a Magistrate; or
• Section 368 — where the issue arises during a trial before a Magistrate or Court of Session.

Section 369 then addresses what should happen to the accused while the investigation or trial cannot proceed normally.

Essential Elements

1. Accused Must Be Incapable of Entering a Defence

The provision is concerned with an accused who has been found incapable of entering a defence because of unsoundness of mind or intellectual disability.

The mere existence of a mental condition is not enough.

The relevant issue is the person’s capacity to participate in the criminal proceedings.

2. Court Considers Whether Release Is Appropriate

The Court must consider whether the person can safely be released.

This involves consideration of the person’s condition and the circumstances surrounding the proposed release.

3. Release May Be to the Care of a Relative or Friend

Where appropriate, the person may be released into the care of a relative or friend.

The Court can impose conditions designed to ensure proper care and prevent the person from causing harm to himself or herself or to others.

4. Undertaking May Be Required

The person receiving custody of the accused may be required to give an undertaking to properly care for the accused and comply with the conditions imposed by the Court.

5. Safe Custody Where Release Is Not Appropriate

If the Court considers that the person cannot safely be released, the accused may be kept in safe custody in the manner prescribed by law.

The focus is not punishment but care, protection and treatment.

Procedure Under Section 369

Step 1: Finding of Incapacity

The Court or Magistrate finds that the accused is incapable of entering a defence because of unsoundness of mind or intellectual disability.

Step 2: Court Considers Release

The Court considers whether the accused can safely be released.

Step 3: Relative or Friend May Take Care

If appropriate, the Court may release the accused into the custody or care of a relative or friend.

Step 4: Conditions May Be Imposed

The Court may impose conditions concerning the care and supervision of the accused.

Step 5: Undertaking

The relative or friend may be required to provide an undertaking to ensure proper care and compliance with the Court’s requirements.

Step 6: Safe Custody Where Necessary

If the accused cannot safely be released, the Court may direct that the accused be kept in safe custody in accordance with the applicable law.

Release Into the Care of a Relative or Friend

Section 369 recognises that institutional custody is not always necessary.

Where the circumstances permit, the accused may be released into the care of a responsible relative or friend.

The Court must be satisfied that the arrangement provides adequate protection and supervision.

The person accepting responsibility may have to undertake that the accused will be:

• properly cared for;
• prevented from causing harm;
• produced before the Court when required; and
• dealt with according to the conditions imposed by the Court.

Safe Custody

Where the accused cannot safely be released, the Court may direct that the accused be kept in safe custody.

The purpose of safe custody is protective rather than punitive.

The person may require medical treatment, supervision or institutional care depending upon the circumstances.

Treatment of the Accused

The BNSS framework recognises that a person suffering from unsoundness of mind or intellectual disability may require appropriate care and treatment.

The objective is therefore not merely to keep the accused in custody but to ensure that the person is dealt with appropriately while the criminal proceedings remain pending.

Example

Suppose A is accused of an offence and, during the proceedings, is found to be incapable of entering a defence because of unsoundness of mind.

The Court considers whether A can safely be released.

If A’s close relative is willing and able to provide proper care and gives the required undertaking, the Court may release A into that relative’s care subject to appropriate conditions.

If the Court believes that A cannot safely be released because adequate supervision cannot be guaranteed, the Court may direct that A be kept in safe custody and dealt with according to the applicable treatment provisions.

Section 369 and Public Safety

Section 369 does not treat the accused’s release as an automatic right once incapacity is established.

The Court must consider whether release is safe and appropriate.

This is important because the Court must balance:

• the rights and welfare of the accused;
• the need for appropriate medical care;
• the safety of the accused; and
• the safety of other persons.

Important Distinction: Release and Acquittal

Release under Section 369 is not the same as acquittal.

The criminal case is not necessarily terminated merely because the accused is released.

Section 369 deals with the accused’s custody and care while the investigation or trial remains pending or cannot proceed in the ordinary manner.

The question of guilt or innocence is dealt with separately under the applicable provisions of the BNSS.

Important Distinction: Section 369 and Section 370

Section 369

Deals with the release and custody of a person of unsound mind or intellectual disability who is incapable of entering a defence.

Section 370

Deals with the resumption of the inquiry or trial when the accused subsequently becomes capable of making a defence.

Therefore:

Section 369 = What happens to the accused while proceedings cannot proceed?

Section 370 = When and how can the proceedings resume?

Relationship with Sections 367 and 368

These provisions should be read together.

Section 367

Deals with an accused of unsound mind during an inquiry before a Magistrate.

Section 368

Deals with an accused of unsound mind during a trial before a Magistrate or Court of Session.

Section 369

Deals with the release, custody and treatment of the accused after the person is found incapable of entering a defence.

Section 370

Deals with resumption of the inquiry or trial when the accused becomes capable of defending himself or herself.

BNSS and CrPC

Section 369 of the BNSS corresponds broadly to Section 330 of the Code of Criminal Procedure, 1973 (CrPC).

The provision continues the basic principle that an accused who is incapable of defending himself or herself because of unsoundness of mind may, where appropriate, be released into the care of a relative or friend subject to safeguards, while a person who cannot safely be released may be kept in appropriate custody.

The BNSS framework also incorporates the updated treatment of persons with intellectual disability.

Common Confusions

Does Section 369 mean that the accused is acquitted?

No.

Release under Section 369 does not by itself amount to acquittal.

Is release automatic?

No.

The Court must consider whether the accused can safely be released and whether adequate care and supervision can be provided.

Can the accused be released to a relative?

Yes.

Where appropriate, the Court may release the accused into the care of a relative or friend subject to the required safeguards.

What if no suitable person can take responsibility?

The Court may direct that the accused be kept in safe custody and dealt with according to the applicable treatment provisions.

Does Section 369 end the criminal proceedings?

No.

The provision primarily concerns the custody, care and treatment of the accused while the proceedings remain pending or cannot proceed because of the accused’s incapacity.

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 369
• Title: Release of person of unsound mind pending investigation or trial
• Corresponding CrPC provision: Section 330
• Applies to: Person incapable of entering a defence because of unsoundness of mind or intellectual disability
• Main issue: Whether the accused can safely be released
• Possible arrangement: Release into the care of a relative or friend
• Safeguard: Conditions and undertaking may be imposed
• Alternative: Safe custody where release is not considered appropriate
• Purpose: Care, protection, treatment and public safety
• Important distinction: Release is not acquittal
• Related provision: Section 370 deals with resumption of proceedings

Quick Revision

• Section 369 BNSS deals with the release of a person of unsound mind pending investigation or trial.
• It applies where the accused is incapable of entering a defence because of unsoundness of mind or intellectual disability.
• The Court considers whether the accused can safely be released.
• The accused may be released into the care of a relative or friend.
• Conditions and an undertaking may be required to ensure proper care and compliance.
• If safe release is not possible, the accused may be kept in safe custody.
• The purpose is protective and therapeutic, not punitive.
• Release under Section 369 does not amount to acquittal.
• Section 369 is closely connected with Sections 367 and 368.
• Section 370 deals with resumption of the inquiry or trial when the accused becomes capable of defending himself or herself.
• Section 369 corresponds broadly to Section 330 CrPC.

ALSO READ: Section 368 – Procedure in case of person of unsound mind tried before Court

Conclusion

Section 369 of the BNSS provides a protective framework for dealing with an accused who is incapable of entering a defence because of unsoundness of mind or intellectual disability. It allows release into the care of a suitable relative or friend where safe and appropriate, subject to safeguards, while permitting safe custody where release is not possible. The provision ensures that the accused’s welfare and safety are considered while preserving the possibility of continuing the criminal proceedings when the accused becomes capable of defending himself or herself.