Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 368
Code: Section 368 BNSS
368.
(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 the 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. 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 psychiatrist or clinical psychologist, he may prefer an appeal before the Medical Board, which shall consist of—
(a) Head of the 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. 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. 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.
Explanation of Section 368 BNSS
Section 368 of the BNSS outlines the procedure when an accused person is found to be suffering from mental illness and consequently incapable of entering a defence. The Magistrate or Court must first determine the fact of mental illness and incapacity, after which they can refer the accused to a psychiatrist or clinical psychologist for a professional evaluation. The Court will then decide on the next steps based on the psychiatric report, including whether the accused should be discharged or their trial postponed for treatment.
Illustration
Example 1: Mental Illness Discovery during Trial
During the trial of an accused, it becomes apparent to the Court that the person may be suffering from a mental illness that prevents them from entering a defence. The Court refers the accused to a psychiatrist, who confirms the diagnosis. The Court then postpones the trial and orders that the accused undergo treatment. If, after treatment, the accused is found capable of defending themselves, the trial may proceed.
Example 2: No Prima Facie Case Found
A Court finds that an accused is mentally ill but concludes that no prima facie case has been made out against them based on the evidence presented. The Court discharges the accused under Section 369, following the psychiatric evaluation and the lack of sufficient evidence for prosecution.
Common Questions and Answers on Section 368 BNSS
1. What happens if the accused person is found mentally ill during the trial?
- Answer: The Court will first verify if the accused is indeed incapable of entering a defence due to mental illness. If confirmed, the trial may be postponed, and the accused may be referred for psychiatric treatment.
2. What if the accused disagrees with the psychiatric report?
- Answer: If the accused disagrees with the psychiatric report, they may appeal to the Medical Board for a second opinion.
3. Can the trial proceed if the accused is found mentally ill?
- Answer: If the Court finds that a prima facie case exists and the accused is mentally ill, the trial will be postponed for treatment. If the accused remains incapable of entering a defence, the case will be dealt with according to Section 369.
Conclusion
Section 368 provides a clear procedure for handling cases where an accused person’s mental illness prevents them from entering a defence. The section ensures that individuals with mental health issues are not unfairly tried and that appropriate care and treatment are provided. It balances the rights of the accused with the need for justice and the protection of public safety
