Procedure in case of person of unsound mind tried before Court
Section 368 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with procedure in case of person of unsound mind tried before Court. 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 of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness of mind and incapa The Act came into force on 01 Jul 2024.
(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 of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness of mind 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 Session finds the accused to be of unsound mind, 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 unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatrist 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 Government medical college.
(3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate or Court shall further determine whether the unsoundness of mind 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 unsoundness of mind 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 intellectual disability, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 369.
Section 368, The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Replaces a provision of the Code of Criminal Procedure
CRPC 329 Procedure in case of person of unsound mind tried before Court Text carried over almost unchanged 95%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Prakash Nayi @ Sen vs The State of Goa Home Department Secretary
Decided under Code of Criminal Procedure 329, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an accused raises a plea of insanity under Section 84 of the Indian Penal Code, the test to be applied is legal insanity, not medical insanity. Legal insanity requires incapacity to know the nature of the act or that it is wrong or contrary to law. The burden on the accused is to establish this on preponderance of probabilities, not beyond reasonable doubt. The crucial point of time is the moment of commission of the offense. Evidence of conduct before, during, and after the offense, combined with medical evidence of mental disorder, is relevant in determining legal insanity. If credible medical evidence establishes mental disorder at the time of the offense, and the accused subsequently becomes fit to stand trial, this is indicative of prior insanity. The trial court and appellate court must apply a preponderance of probabilities standard and not reject the insanity defense merely because the nature of the act appears intentional or because some witnesses did not observe abnormality.
On this section: Application for examination of accused's fitness to stand trial. Referenced as the provision under which the appellant's application was filed before the trial court.
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Pinku Singh vs The State of Bihar
Decided under Code of Criminal Procedure 329, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
An accused charged with serious offences including murder may be granted bail under Section 330 Cr.P.C. when the accused is suffering from mental illness rendering him unfit to stand trial, provided that: (1) the accused has been in prolonged judicial custody without trial progress due to mental unfitness; (2) the trial court has assessed and confirmed the mental unfitness; (3) appropriate conditions are imposed including family undertakings for medical treatment, regular progress reports, and undertaking to produce the accused upon recovery for trial continuation; and (4) the bail conditions are designed to ensure both the accused's rehabilitation and eventual trial fairness.
On this section: Referenced as part of provisions applicable to mentally ill persons in criminal procedure
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Hamid @ Kaliya vs State
Decided under Code of Criminal Procedure 329, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a trial is postponed under Section 329 CrPC on the ground of incapacity of the accused to make his defence due to unsound mind, and is subsequently resumed under Section 331 CrPC, the trial must commence de novo and not continue from the point of postponement. Furthermore, resumption of such trial without recording medical evidence establishing that the accused has ceased to be of unsound mind and is now capable of making his defence will vitiate the entire trial. Additionally, the mental unsoundness of one co-accused during trial, which affects the recording of evidence and the entire complexion of the case, will vitiate the trial of other co-accused as well.
On this section: Procedure in case of person of unsound mind tried before Court - Trial judge invoked this section to postpone proceedings when Hamid @ Kaliya was found to have paranoid schizophrenia
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 368
What have the courts held on Section 368 of the Bharatiya Nagarik Suraksha Sanhita?
Prakash Nayi @ Sen vs The State of Goa Home Department Secretary (12 Jan 2023) is the leading judgment on this section among those set out below, though it was decided under CRPC 329, which this section replaced -- the court never mentioned this Act: Application for examination of accused's fitness to stand trial. Referenced as the provision under which the appellant's application was filed before the trial court. Another 2 judgments on this section are set out below, 1 of them from the Supreme Court. They run from 2006 to 2023.
How do I find court cases under Section 368 of the Bharatiya Nagarik Suraksha Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNSS 368, section 368 BNSS, section 368 of the Bharatiya Nagarik Suraksha Sanhita. People searching for it also type bnss 368 2. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 3 reported judgments on this section are set out on this page, beginning with Prakash Nayi @ Sen vs The State of Goa Home Department Secretary (12 Jan 2023).
What should I read with Section 368 of the Bharatiya Nagarik Suraksha Sanhita, and has it changed?
Its own text turns on section 369 (Release of person of unsound mind pending investigation or trial), so none of them can safely be read on its own. 3 other provisions in this corpus refer back to it. It carries forward CrPC 329 (Procedure in case of person of unsound mind tried before Court), so the judgments decided under that provision are the case law on this one.
When did Section 368 of the Bharatiya Nagarik Suraksha Sanhita come into force?
Section 368 of the Bharatiya Nagarik Suraksha Sanhita, cited as BNSS 368, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 359. Compounding of offences1355 words
- 187. Procedure when investigation cannot be completed in twenty-four hours1122 words
- 2. Definitions956 words
- 243. Trial for more than one offence930 words
- 35. When police may arrest without warrant881 words
- 480. When bail may be taken in case of non-bailable offence823 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.