Introduction to Section 368 BNSS
BNSS Section 368 outlines the legal process to be followed when an accused person on trial is found to be of unsound mind or suffering from intellectual disability. It ensures that no person is forced to face criminal trial unless they are mentally fit to defend themselves. This section reflects a balance between justice, medical ethics, and human rights by involving professional evaluation and legal safeguards.
What is BNSS Section 368 ?
BNSS Section 368 provides the procedure to be followed during a criminal trial if the accused is found to be of unsound mind or intellectually disabled. It ensures that the trial is either postponed or discontinued depending on medical advice. The court seeks a professional psychiatric evaluation and protects the rights of the accused. This section helps maintain justice by not trying someone incapable of understanding or defending themselves.
BNSS Section of 368 in Simple Points
1. Court’s Duty on Detecting Unsound Mind During Trial
When a Magistrate or Court of Session finds that an accused person appears to be of unsound mind, the trial is paused. The court must first determine the mental condition of the accused by evaluating evidence and referring the matter for psychiatric examination. If it is confirmed that the accused cannot make a defence due to mental illness, the court records this finding. This legal safeguard ensures no mentally unfit person is unfairly subjected to a criminal trial. The entire process is based on medical input, not assumption. If the finding is confirmed, proceedings are postponed. This guarantees justice with mental health sensitivity.
2. Referral to Psychiatrist or Psychologist
If mental unfitness is suspected, the accused must be referred to a psychiatrist or clinical psychologist in a Government hospital or medical college. The medical expert assesses the condition and submits a report on whether the person is mentally ill and incapable of defending themselves. This medical report plays a vital role in deciding the course of the trial. It protects the dignity and legal rights of mentally vulnerable individuals. The law also allows the accused to challenge the report. This process shows a fair and transparent system of judicial inquiry based on scientific findings.
3. Right to Appeal Medical Report
BNSS Section 368 ensures that the accused is not bound by one medical opinion. If dissatisfied, they can appeal before a Medical Board, which consists of senior psychiatric professionals—one from a government hospital and one from a medical college. This board provides a second expert opinion to avoid misdiagnosis or false reporting. It adds a layer of credibility and fairness. The appeal provision reflects the Indian justice system’s commitment to protecting the rights of every individual. It ensures that a person is not wrongly labelled as mentally unfit based on one opinion alone.
4. Legal Actions Based on Medical Report
If the psychiatrist confirms unsoundness of mind, the Court must decide whether the condition makes the person incapable of entering defence. If no prima facie case exists, the court discharges the accused immediately. But if a prima facie case is found, the trial is postponed for a specific treatment period as advised by the doctor. This helps balance both public justice and individual protection. The Court does not proceed hastily but waits until the accused becomes mentally fit. The legal outcome depends on both evidence strength and medical status of the accused.
5. Special Provision for Intellectual Disability
If the accused is found not just mentally ill but suffering from intellectual disability, the law takes a different route. Intellectual disability, being usually permanent, means the person may never become fit for trial. In such cases, the Court does not hold the trial at all. Instead, the accused is dealt with as per Section 369, which ensures proper care, supervision, or institutional support. This provision ensures that people with long-term cognitive impairments are not subjected to criminal trials they can never understand or participate in. It shows empathy and legal sensitivity towards lifelong conditions.
368 BNSS Overview
BNSS Section 368 is part of Chapter XXVII: Provisions as to Accused Persons of Unsound Mind. It deals with cases where the accused is already facing trial before a Magistrate or Court of Session, and during the trial, they are found mentally unfit. The section lays down the procedures for medical examination, legal findings, appeal to medical boards, and decisions on whether to postpone or stop the trial. If the accused cannot defend themselves due to mental illness or intellectual disability, they are not subjected to a standard trial but are managed under Section 369.
BNSS Section 368 – 10 Key Points Explained in Detail
1. Mental Condition Discovered During Trial
BNSS Section 368 applies when a person on trial appears to be mentally unfit to defend themselves. If, during trial, a Magistrate or Court of Session suspects that the accused is of unsound mind, they must first assess this issue. A special inquiry is initiated to verify the fact of mental incapacity. Based on available medical and other evidence, the Court must determine whether the accused truly lacks the mental ability to participate in the trial. If confirmed, the proceedings are postponed temporarily. This ensures that justice is not compromised by proceeding with someone incapable of defending themselves.
2. Mandatory Referral for Medical Evaluation
Once suspicion of mental illness arises, the Magistrate or Court must refer the accused to a psychiatrist or clinical psychologist. This medical professional is responsible for assessing the accused’s mental state. The goal is to provide proper care and treatment as well as a clinical opinion about the person’s capacity to stand trial. The medical expert then submits a report stating whether the accused is suffering from unsoundness of mind. This professional opinion is crucial before the Court makes a legal finding. It ensures the Court does not rely only on surface-level behavior but uses medical science to support its conclusion.
3. Right to Appeal Medical Report
The accused has the right to appeal the psychiatrist’s or psychologist’s report if they disagree with the findings. The appeal goes to a Medical Board specially constituted for this purpose. This board includes two senior professionals: (a) the head of a psychiatry unit in the nearest government hospital, and (b) a psychiatry faculty member from the nearest government medical college. This appeals process ensures that the accused gets a fair second opinion. It protects the legal and human rights of individuals who may have been wrongly diagnosed or misrepresented. This also prevents misuse of mental health claims in court.
4. Legal Evaluation of Defence Capacity
After medical confirmation of unsoundness of mind, the Court must evaluate if the mental condition truly prevents the accused from defending themselves. This is a legal question and not only a medical one. The Court cannot question the accused directly but must review the prosecution’s evidence and hear the advocate of the accused. If the person is found incapable and no prima facie case exists, the accused may be discharged immediately. This protects innocent persons who are also mentally unwell from facing prolonged and unnecessary legal trials.
5. When Prima Facie Case Exists – Postponement
If the Court finds a prima facie case against an accused who is mentally unfit to stand trial, it does not immediately proceed. Instead, the trial is postponed for a suitable period as recommended by the psychiatrist or psychologist. The postponement allows the accused to undergo treatment with the hope that their condition improves enough to resume trial. This approach ensures the accused gets a fair chance at participating in their own defence. It also maintains the integrity of the judicial process by not rushing into a trial without the accused’s proper understanding.
6. Intellectual Disability: A Different Route
If the accused is not suffering from temporary mental illness but from intellectual disability, a different legal route is followed. Once confirmed that this disability makes the accused permanently incapable of entering defence, the trial is not conducted. Instead, the accused is dealt with as per Section 369, which contains special provisions for such situations. This provision recognizes that intellectual disabilities are usually long-term and do not improve with short-term treatment. The focus then shifts from trial to protection and appropriate care.
7. Legal Record and Documentation
Once the Court or Magistrate concludes that the accused is of unsound mind or intellectually disabled, it must formally record a legal finding. This written decision becomes part of the trial record. This includes medical reports, legal reasoning, and whether the person is capable or incapable of defence. This documentation is critical for future legal reference. It also ensures transparency in the decision-making process. Every action must be based on evidence and law, not assumption.
8. Role of the Advocate for the Accused
During this entire process, the advocate for the accused plays a key role. Even if the accused cannot defend themselves, the advocate represents their interests during hearings. The advocate can cross-check the prosecution’s evidence and speak on behalf of the accused. The Court must hear the advocate before deciding on discharge or postponement. This maintains the accused’s right to legal representation at every stage of the process.
9. Protecting the Justice System from Misuse
Section 368 also prevents misuse of mental illness as a legal excuse. A detailed system of medical validation, appeal, and legal evaluation ensures that only genuine cases get relief. False claims can be filtered out through multiple layers of scrutiny. This balance between compassion and caution makes Section 368 a fair and necessary provision in criminal trials. It strengthens the judicial system by ensuring fair trials only occur when the accused is mentally capable of participation.
10. Connection with Section 369
All procedures under BNSS Section 368, whether for postponement or discharge, eventually link to Section 369. That section provides the actual mechanism for the care, custody, or supervision of such accused persons. It ensures that mentally unfit individuals are not set free unsupervised nor punished unfairly. Instead, they are protected and managed appropriately. Section 368 thus acts as a filtering process, determining whether the trial can proceed or be diverted to protective procedures under Section 369.
Example 1:
During a trial for theft, the accused starts showing signs of severe mental instability and cannot understand the proceedings. The Magistrate refers the person for psychiatric evaluation, and it is confirmed that the accused is of unsound mind. Since no strong evidence exists, the Magistrate discharges the accused under Section 368.
Example 2:
In a murder trial, midway through the trial, the accused exhibits delusional behavior. A psychiatrist confirms schizophrenia, but the evidence against the accused is strong. The trial is postponed under BNSS Section 368 to allow the accused to receive treatment, and proceedings will resume once they are mentally fit.
BNSS Section 368 Short Information
| Point | Details |
|---|---|
| Section Name | BNSS Section 368 |
| Main Purpose | Applies when an accused person is found mentally unfit during a trial. The court must verify their condition through medical and legal review. |
| Medical Examination | The accused is referred to a psychiatrist or psychologist for assessment. Their report determines the person’s mental fitness to stand trial. |
| Outcome of Mental Unfitness | If unfit and no case → accused discharged; if unfit but case exists → trial postponed for treatment as per Section 369 procedures. |
| Protection for Intellectual Disability | If the accused has a permanent intellectual disability, the trial is closed and handled under Section 369 for care and protection. |
Why is BNSS Section 368 Needed?
BNSS Section 368 is crucial because it ensures that criminal trials are conducted fairly and justly. A person who is mentally unfit cannot understand the charges, consult a lawyer, or participate in their defence—making a trial against them unfair and unconstitutional. This section recognizes the need to treat such individuals with dignity, medical care, and protection, instead of forcing them through complex legal processes. It also protects the integrity of the justice system by ensuring only those fit to stand trial are prosecuted. Without Section 368, many mentally ill or intellectually disabled people would be at risk of wrongful conviction or prolonged detention.
BNSS Section 368 FAQs
BNSS 368
Conclusion
BNSS Section 368 ensures fair treatment of accused persons who are found mentally unfit during a trial. The court pauses proceedings, seeks expert medical advice, and decides whether to continue, postpone, or close the case. It prevents unfair trials and protects the rights of mentally ill or intellectually disabled individuals.
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