Section 378 of BNSS, 2023 — Delivery of Person of Unsound Mind to Care of Relative or Friend

Introduction

Section 378 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a procedure for delivering a person of unsound mind, who is detained under specified provisions of the Sanhita, into the care and custody of a relative or friend.

The provision balances the welfare of the person of unsound mind with the need to ensure that he does not cause injury to himself or another person and that he remains available for inspection or, where required, for proceedings before the Magistrate or Court.

The provision substantially continues the framework of Section 339 of the Code of Criminal Procedure, 1973, while adopting the terminology of “person of unsound mind”.

Meaning of Section 378

Section 378 permits the State Government, on an application made by a relative or friend, to deliver a detained person of unsound mind into that person’s care and custody.

Such delivery is not unconditional. The relative or friend must provide security to the satisfaction of the State Government and undertake to comply with specified safeguards.

The provision also deals with the situation where the person is subsequently certified as capable of making his defence. In such a case, the Magistrate or Court can require the relative or friend to produce the accused before it.

Statutory Basis

The principal provision is:

• Section 378, BNSS, 2023 — Delivery of person of unsound mind to care of relative or friend.

The provision operates in connection with:

• Section 369 — Release of person of unsound mind pending investigation or trial.
• Section 371 — Procedure on accused appearing before Magistrate or Court.
• Section 374 — Person acquitted on ground of unsoundness of mind to be detained in safe custody.

Object and Purpose

Section 378 serves several connected purposes:

• permitting a suitable relative or friend to assume care and custody of the person;
• ensuring that the person receives proper care;
• preventing injury to the person himself or to another person;
• ensuring that the person remains available for inspection;
• ensuring that an accused whose trial was postponed because of unsoundness of mind can be produced before the Magistrate or Court when required.

The provision therefore combines family care with statutory safeguards and judicial supervision.

Essential Elements

1. The person must be detained under specified provisions

Section 378 applies where the person is detained under:

• Section 369; or
• Section 374.

The provision does not apply generally to every person who may be described as being of unsound mind.

2. Application by a relative or friend

A relative or friend must desire that the person be delivered into his or her care and custody.

The relative or friend must make an application to the State Government.

3. Security must be furnished

The applicant must give security to the satisfaction of the State Government.

The security relates to compliance with the conditions imposed by Section 378.

4. Proper care must be ensured

The person receiving custody must undertake that the person delivered will be properly taken care of.

The undertaking must also ensure that the person is prevented from causing injury to himself or any other person.

5. Production for inspection

The person delivered into private care must be produced for inspection by the officer specified by the State Government.

The inspection must take place at such times and places as the State Government directs.

6. Production before the Magistrate or Court

Where the person was detained under sub-section (2) of Section 369, the relative or friend must ensure his production before the Magistrate or Court whenever required.

7. Subsequent certification of fitness to make defence

If the person delivered is an accused whose trial was postponed because he was of unsound mind and incapable of making his defence, the inspecting officer may subsequently certify that he is capable of making his defence.

When such certification is made, the Magistrate or Court must call upon the relative or friend to produce the accused.

Procedure under Section 378

The procedure can be understood in the following stages:

1. A person is detained under Section 369 or Section 374.
2. A relative or friend seeks to obtain his care and custody.
3. The relative or friend makes an application to the State Government.
4. The applicant provides security to the satisfaction of the State Government.
5. The applicant undertakes to ensure proper care and prevent the person from causing injury to himself or another person.
6. The applicant undertakes to produce the person for inspection at the times and places directed by the State Government.
7. Where applicable, the applicant must also produce the person before the Magistrate or Court when required.
8. The State Government may order that the person be delivered to the relative or friend.
9. If the person is an accused whose trial was postponed because of unsoundness of mind, the inspecting officer may later certify that he is capable of making his defence.
10. The Magistrate or Court then calls upon the relative or friend to produce the accused.
11. Upon production, the Magistrate or Court proceeds in accordance with Section 371.
12. The certificate of the inspecting officer is receivable as evidence.

Powers of the State Government

The State Government has the power to consider an application by a relative or friend and, subject to the required security, order delivery of the person into that person’s care and custody.

The State Government may also determine:

• the conditions attached to the custody;
• the officer before whom the person must be produced for inspection;
• the times and places of inspection; and
• the circumstances in which production before the Magistrate or Court is required.

Duties of the Relative or Friend

A relative or friend who receives custody must comply with the statutory safeguards.

The person receiving custody must:

• properly take care of the person;
• prevent him from causing injury to himself or another person;
• produce him for inspection as directed;
• produce him before the Magistrate or Court where required; and
• comply with the conditions attached to the State Government’s order.

The delivery of custody therefore does not transfer the person into unrestricted private control.

Procedure When the Person Becomes Capable of Making His Defence

Section 378(2) specifically addresses an accused whose trial has been postponed because he was of unsound mind and incapable of making his defence.

If the inspecting officer certifies that the accused has become capable of making his defence:

1. the certificate is communicated to the Magistrate or Court;
2. the Magistrate or Court calls upon the relative or friend to produce the accused;
3. the accused is produced before the Magistrate or Court;
4. the Magistrate or Court proceeds under Section 371; and
5. the certificate of the inspecting officer is receivable as evidence.

Thus, private custody does not prevent the criminal proceeding from being resumed when the accused becomes capable of defending himself.

Important Distinctions

Delivery to Relative or Friend vs Release

Delivery under Section 378 is not the same as an unconditional release.

The person remains subject to the safeguards imposed by the State Government, including inspection and, where applicable, production before the Magistrate or Court.

Care and Custody vs Unrestricted Possession

A relative or friend receiving the person does not obtain unrestricted control over him.

The custody is subject to statutory conditions designed to protect both the person of unsound mind and others.

Section 378 vs Section 377

Section 377 deals with the procedure where a detained person of unsound mind is declared fit to be released.

Section 378 deals specifically with delivery of a detained person of unsound mind into the care and custody of a relative or friend.

BNSS and CrPC

Section 378 of BNSS corresponds to Section 339 of the Code of Criminal Procedure, 1973.

The basic statutory mechanism has substantially continued.

The principal terminology change is the replacement of the expression “lunatic” in the earlier provision with the expression “person of unsound mind” under BNSS.

The corresponding BNSS provision also uses the updated section references within the BNSS framework.

Relationship with Other BNSS Provisions

Section 369

Section 369 concerns release of a person of unsound mind pending investigation or trial. Section 378 provides a mechanism through which such a detained person may, subject to conditions, be placed in the care and custody of a relative or friend.

Section 371

Section 371 becomes relevant when an accused delivered to a relative or friend is subsequently certified to be capable of making his defence. Upon production of the accused, the Magistrate or Court proceeds under Section 371.

Section 374

Section 374 concerns detention in safe custody of a person acquitted on the ground of unsoundness of mind. A person detained under that provision may also fall within the scope of Section 378.

Constitutional Connection

Section 378 reflects the need to balance personal liberty and humane care with the protection of the person of unsound mind and others from potential injury.

The safeguards imposed on the relative or friend also support the principle that deprivation or restriction of liberty must operate within a lawful procedural framework.

Common Confusions

Can any person simply take a person of unsound mind into custody?

No.

Section 378 requires an application to the State Government and security to its satisfaction before the person may be delivered into the care and custody of the relative or friend.

Is the relative or friend free from all supervision after receiving custody?

No.

The person must be produced for inspection as directed by the State Government and, in the specified case, must also be produced before the Magistrate or Court when required.

What happens if the accused becomes capable of making his defence?

The inspecting officer may certify this fact. The Magistrate or Court must then call upon the relative or friend to produce the accused, after which the Court proceeds under Section 371.

Is the inspecting officer’s certificate evidence?

Yes.

Section 378 expressly provides that the certificate of the inspecting officer is receivable as evidence.

Example

A person accused of an offence is detained because he is of unsound mind and incapable of making his defence. His brother applies to the State Government seeking his care and custody and provides the required security.

If the statutory conditions are satisfied, the State Government may order delivery of the accused to his brother. The brother must properly care for him, prevent him from causing injury to himself or another person, and produce him for inspection as directed.

If the inspecting officer later certifies that the accused has become capable of making his defence, the Magistrate or Court can require the brother to produce him. Once produced, the Court proceeds in accordance with Section 371.

Topic at a Glance

• Topic: Delivery of person of unsound mind to care of relative or friend
• BNSS Section: Section 378
• Applicant: Relative or friend
• Authority: State Government
• Requirement: Application and security satisfactory to the State Government
• Main safeguards: Proper care, prevention of injury, inspection and production before Court where required
• Relevant provisions: Sections 369, 371 and 374
• Subsequent fitness: Inspecting officer may certify capability to make a defence
• Court’s response: Call upon the relative or friend to produce the accused
• Evidence: Inspecting officer’s certificate is receivable as evidence
• Corresponding CrPC provision: Section 339

Quick Revision

• Section 378 BNSS deals with delivery of a person of unsound mind into the care and custody of a relative or friend.
• It applies to persons detained under Sections 369 or 374.
• The relative or friend must apply to the State Government.
• Security satisfactory to the State Government must be furnished.
• The person must be properly cared for and prevented from causing injury to himself or another person.
• The person must be produced for inspection as directed.
• In the case covered by Section 378(1)(c), he must also be produced before the Magistrate or Court when required.
• If an accused subsequently becomes capable of making his defence, the inspecting officer may certify this fact.
• The Magistrate or Court can then require the relative or friend to produce the accused.
• After production, the Court proceeds under Section 371.
• The inspecting officer’s certificate is receivable as evidence.
• Section 378 corresponds to Section 339 of the CrPC.
• The BNSS terminology uses “person of unsound mind” instead of the earlier expression “lunatic”.

ALSO READ: Section 377 – Procedure where person of unsound mind detained is declared fit to be released

Conclusion

Section 378 of the BNSS provides a structured mechanism for placing a detained person of unsound mind under the care of a responsible relative or friend. The arrangement is conditional upon security and continuing safeguards relating to care, inspection and, where necessary, production before the Magistrate or Court. Where the person is an accused whose trial was postponed because of his mental condition, the provision also ensures that criminal proceedings can resume once he becomes capable of making his defence.