Procedure in case of accused being lunatic
Section 328 of the Code of Criminal Procedure, 1973 deals with procedure in case of accused being lunatic. When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
(3) If such Magistrate is of opinion that the person referred to in sub-section (1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.
Section 328, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 367 Procedure in case of accused being person of unsound mind Close, with changes 78%
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 The repealed enactment still governs what happened while it was in force.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
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: Provisions relating to persons of unsound mind. The Court emphasized the procedural safeguards and the mandatory duty of courts to consider fitness to stand trial and the role of courts in finding remedial measures.
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State vs Gani Mohd.
Court's Decision & Legal Precedent
A conviction pronounced against an accused who cannot understand the proceedings, without explaining to the accused the incriminating circumstances appearing against him and without giving him a chance of defence, and without a conclusive finding about the accused's mental state regarding understanding of proceedings, is void ab initio. Before proceeding with trial against such an accused, the trial court must make necessary enquiries and reach a definite conclusion about whether the accused can be made to understand the proceedings. The legislative intent of Section 318 CrPC is that conviction can be recorded only when the requirements of Chapters XVII to XXI of the Criminal Procedure Code have been complied with.
On this section: Provision requiring magistrate to postpone proceedings when accused cannot understand proceedings, and mandating examination by medical officer. Court noted this provision was not followed in the trial court.
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Pinku Singh vs The State of Bihar
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 by Additional Public Prosecutor as alternative provision for consideration regarding mentally ill accused
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.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… the period when the offence was committed i.e., from January, 2012, to May, 2012, the Appellant was suffering from mental illness and was therefore entitled to the exception delineated in Section 84 of the IPC. The Learned Trial Court however failed to extend this benefit by neglecting to invoke the provision of Section 328 of the Code of Criminal Procedure, 1973, (for short, the "Cr.P.C."), to consider the mental health of the Appellant and the circumstances that preceded, attended and followed the alleged offences. That, Exhibit X1 and Exhibit X2, the medical papers pertaining to the Appellant issued by D.W.1, Dr. Chandra Shekhar …
Questions about Section 328
What have the courts held on Section 328 of the Code of Criminal Procedure?
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: Provisions relating to persons of unsound mind. The Court emphasized the procedural safeguards and the mandatory duty of courts to consider fitness to stand trial and the role of courts in finding remedial measures. Another 2 judgments on this section are set out below, 1 of them from the Supreme Court. They run from 2009 to 2023.
How do I find court cases under Section 328 of the Code of Criminal Procedure?
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: CRPC 328, section 328 CRPC, section 328 of the Code of Criminal Procedure. People searching for it also type crpc 328 in bnss and crpc 328 329. 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 328 of the Code of Criminal Procedure, and has it changed?
Its own text turns on section 330 (Release of lunatic pending investingaion or trial), so none of them can safely be read on its own. 3 other provisions in this corpus refer back to it. For anything done on or after 1 July 2024 the provision to read is BNSS 367 (Procedure in case of accused being person of unsound mind), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 328 of the Code of Criminal Procedure come into force?
Section 328 of the Code of Criminal Procedure, cited as CRPC 328, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 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. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.