CrPC Sections 328, 329 and 330: Procedure for Accused Persons of Unsound Mind

Section 328(1): When a Magistrate holding an inquiry had reason to believe that the person against whom the inquiry was being held was of unsound mind and consequently incapable of making a defence, the Magistrate was required to inquire into that fact, cause the person to be examined by the civil surgeon of the district or another medical officer directed by the State Government, examine the medical officer as a witness and reduce the examination to writing.

Section 328(1A): Where the civil surgeon found the accused to be of unsound mind, the person was to be referred to a psychiatrist or clinical psychologist for care, treatment and prognosis. The specialist was to inform the Magistrate whether the accused suffered from unsoundness of mind or, in the terminology then used by the CrPC, "mental retardation". An aggrieved accused could appeal against that information to the prescribed Medical Board.

Section 328(2): Pending the examination and inquiry, the Magistrate could deal with the accused in accordance with Section 330.

Section 328(3): If the accused was found to be of unsound mind, the Magistrate had to determine whether that condition rendered the accused incapable of entering a defence. If incapable, the Magistrate recorded a finding and examined the prosecution material after hearing the advocate for the accused, without questioning the accused. If no prima facie case existed, the accused was to be discharged and dealt with under Section 330. If a prima facie case existed, the proceeding was postponed for the treatment period considered necessary by the psychiatrist or clinical psychologist.

Section 328(4): Where the accused had the condition described in the CrPC by the older expression "mental retardation" and was incapable of entering a defence, the Magistrate was to close the inquiry and deal with the accused under Section 330.

Section 329(1): On being satisfied that the accused was of unsound mind and incapable of making a defence, the Magistrate or Court was required to record a finding and postpone further proceedings.

Section 329(1A): During trial, the accused could be referred to a psychiatrist or clinical psychologist for care and treatment. The specialist reported whether the accused was suffering from unsoundness of mind, with an appeal available to the prescribed Medical Board against the specialist's information.

Section 329(2): If incapacity to enter a defence was established, the Court examined the prosecution record after hearing the advocate for the accused and without questioning the accused. If no prima facie case existed, the accused was to be discharged and dealt with under Section 330. If a prima facie case existed, the trial was postponed for the period required for treatment.

Section 329(3): If a prima facie case existed but the accused was incapable of entering a defence because of the condition described by the CrPC using the older expression "mental retardation", the trial was not to proceed and the accused was to be dealt with under Section 330.

Section 330(1): The Magistrate or Court was to order release on bail, whether or not the case was otherwise bailable, where the accused's condition did not require in-patient treatment and a friend or relative undertook to secure regular out-patient psychiatric treatment and prevent injury to the accused or any other person.

Section 330(2): If bail could not be granted or the required undertaking was not furnished, the accused was to be kept at a place where regular psychiatric treatment could be provided, and the action taken was to be reported to the State Government.

Section 330(3): The Court also had to consider the nature of the act and the extent of the accused's condition when deciding whether release could be ordered. Depending on medical or specialist opinion, discharge could be accompanied by sufficient security against injury; otherwise, transfer to an appropriate residential facility could be ordered for care, education and training.