What Is BNSS Section 368?

Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 368: Procedure in case of person with mental illness tried before Court

(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is suffering from mental illness and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such mental illness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) If during trial, the Magistrate or Court of Sessions finds the accused to be a person with mental illness, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from mental illness:

Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of—

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

(3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person with mental illness, the Magistrate or Court shall further determine whether the mental illness renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 369:

Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of mental illness is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.

(4) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental illness, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 369.

Brefe Detail

Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 outlines the procedure for handling cases where an accused person is believed to have a mental illness that impacts their ability to defend themselves. Key points include:

• The Magistrate or Court must first determine if the accused is suffering from mental illness.
• If so, the accused is referred to a psychiatrist or clinical psychologist for evaluation and treatment.
• The accused has the right to appeal the findings of the medical professional to a Medical Board.
• If the accused is found incapable of entering a defense, the trial may be postponed or closed based on specific provisions.

Question & Answers

What is the main focus of Section 368?

It addresses the procedures for handling trials involving accused individuals with mental illness.

What should the Magistrate or Court do if they suspect the accused has a mental illness?

They must inquire into the mental condition and may postpone proceedings if necessary.

What happens if the accused is found to have mental illness during the trial?

The Magistrate or Court will refer the accused to a psychiatrist or clinical psychologist for evaluation and treatment.

Can the accused appeal the findings of the psychiatrist or clinical psychologist?

Yes, the accused can appeal to a Medical Board if they are dissatisfied with the findings.

What occurs if the accused is deemed incapable of entering a defense?

The trial may be postponed or closed, and the case will be handled according to section 369.

Example

- Scenario: A Magistrate suspects that the accused in a theft case has a mental illness affecting their defense capability.
Action: The Magistrate orders a medical examination to determine the mental state of the accused.

- Scenario: The psychiatrist confirms that the accused suffers from a mental illness.
Action: The Magistrate decides whether the accused can enter a defense; if not, the trial is postponed for treatment as outlined in the relevant provisions.

Summary

Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a comprehensive framework for managing trials involving individuals with mental illness. It mandates thorough inquiries, medical evaluations, and allows for appeals against medical findings. The section ensures that if an accused is found incapable of defending themselves due to mental illness, appropriate legal procedures are followed, prioritizing their treatment and well-being.