Section 367 BNSS: Procedure in Case of Accused Being Person of Unsound Mind
Section 367 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure a Magistrate must follow when there is reason to believe that an accused person is of unsound mind and, because of that condition, is incapable of making a defence during an inquiry.
Meaning and Purpose of Section 367 BNSS
Section 367 protects the fairness of a criminal inquiry where the accused may be unable to understand or participate effectively in the defence because of unsoundness of mind. The provision requires a judicial inquiry into the accused person's condition, an appropriate medical assessment, and a separate determination of whether the condition actually makes the accused incapable of entering a defence.
The section distinguishes between unsoundness of mind and intellectual disability for the procedural consequences that follow. It also gives the accused a statutory avenue to challenge the medical information before a Medical Board.
Section 367 broadly corresponds to Section 328 of the Code of Criminal Procedure, 1973, while using the terminology and procedure enacted under the BNSS.
Section 367 BNSS - Statutory Text
367. Procedure in case of accused being person of unsound mind.
(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is a person 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 medical officer as a witness, and shall reduce the examination to writing.
(2) If the civil surgeon finds the accused to be a person of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist of Government hospital or Government medical college for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or intellectual disability:
Provided that if the accused is aggrieved by the information given by the psychiatric 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) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 369.
(4) If the Magistrate is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate 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 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 he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 369:
Provided that if the Magistrate 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 proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 369.
(5) If the Magistrate is informed that the person referred to in sub-section (2) is a person with intellectual disability, the Magistrate shall further determine whether the intellectual disability renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 369.
Procedure Under Section 367: Step-by-Step
Medical Examination and Appeal to the Medical Board
Under sub-section (2), specialist assessment is to be undertaken by a psychiatrist or clinical psychologist of a Government hospital or Government medical college. The specialist informs the Magistrate whether the accused is suffering from unsoundness of mind or intellectual disability.
If the accused is aggrieved by that information, the proviso permits an appeal to a Medical Board. The Board consists of the head of the psychiatry unit in the nearest Government hospital and a faculty member in psychiatry in the nearest Government medical college.
What Happens After a Finding of Unsoundness of Mind?
Where the Magistrate finds that the accused is incapable of entering a defence because of unsoundness of mind, sub-section (4) requires the Magistrate to record that finding and examine the prosecution evidence. The advocate for the accused must be heard, but the accused is not to be questioned for this purpose.
If no prima facie case is made out
The Magistrate must discharge the accused instead of merely postponing the inquiry, and the accused is then dealt with in the manner provided by Section 369 BNSS.
If a prima facie case is made out
The Magistrate must postpone the proceeding for the period considered necessary for treatment in the opinion of the psychiatrist or clinical psychologist and must deal with the accused in accordance with Section 369 BNSS.
Procedure Where the Accused Has Intellectual Disability
Sub-section (5) separately addresses intellectual disability. The Magistrate must determine whether the intellectual disability renders the accused incapable of entering a defence. If the accused is found incapable, the Magistrate must order closure of the inquiry and deal with the accused in accordance with Section 369.
Section 367 and Pending Proceedings Under the Old CrPC
The BNSS took effect on 1 July 2024. Section 531 is important for transition cases: an investigation, inquiry, trial, application or appeal that was pending immediately before commencement is generally continued under the Code of Criminal Procedure, 1973 as if the BNSS had not come into force. For such matters, the corresponding CrPC provision may therefore remain applicable.
Official Legal Sources
For authoritative statutory text and commencement information, refer to the official Government of India sources below.
Frequently Asked Questions
What does Section 367 BNSS deal with?
It prescribes the procedure during an inquiry when a Magistrate believes that an accused person is of unsound mind and, because of that condition, is incapable of making a defence.
Can the accused challenge the specialist medical opinion?
Yes. Section 367(2) permits an aggrieved accused to appeal against the information given by the psychiatrist or clinical psychologist to the Medical Board specified in the proviso.
Can an accused be discharged under Section 367?
Yes. Where the accused is incapable of entering a defence and the Magistrate finds that no prima facie case is made out on the prosecution record after hearing the accused's advocate, the Magistrate must discharge the accused and proceed in accordance with Section 369.
What happens if a prima facie case exists?
The proceeding is postponed for the treatment period considered necessary in the opinion of the psychiatrist or clinical psychologist, and the accused is dealt with under Section 369.