Bharatiya Nagarik Suraksha Sanhita, 2023
Section 369 BNSS: Release of Person of Unsound Mind Pending Investigation or Trial
Updated: 12 September 2026
Meaning and scope of Section 369 BNSS
Section 369 operates after a finding under Section 367 BNSS or Section 368 BNSS that the accused is incapable of entering defence by reason of unsoundness of mind or intellectual disability. The provision is part of Chapter XXVII of the BNSS, which contains provisions relating to accused persons of unsound mind.
The BNSS is Act No. 46 of 2023. It received Presidential assent on 25 December 2023 and, subject to the notified exception relating to the First Schedule entry concerning Section 106(2) of the Bharatiya Nyaya Sanhita, came into force on 1 July 2024.
- The Magistrate or Court may order release on bail even where the case is otherwise not one in which bail may ordinarily be taken, if the conditions in Section 369(1) are satisfied.
- The accused must not require in-patient treatment, and a friend or relative must undertake to secure regular out-patient psychiatric treatment and prevent injury to the accused or any other person.
- If bail cannot be granted, or the required undertaking is not given, the accused may be kept at a place where regular psychiatric treatment can be provided.
- Detention in a public mental health establishment must comply with the applicable rules made under the Mental Healthcare Act, 2017.
- The Court must also consider whether discharge, release with sufficient security, or transfer to a suitable residential facility is appropriate.
Text of Section 369 BNSS
369. (1) Whenever a person if found under section 367 or section 368 to be incapable of entering defence by reason of unsoundness of mind or intellectual disability, the Magistrate or Court, as the case may be, shall, whether the case is one in which bail may be taken or not, order release of such person on bail:
Provided that the accused is suffering from unsoundness of mind or intellectual disability which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.
(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government:
Provided that no order for the detention of the accused in a public mental health establishment shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Healthcare Act, 2017.
(3) Whenever a person is found under section 367 or section 368 to be incapable of entering defence by reason of unsoundness of mind or intellectual disability, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or intellectual disability, further determine if the release of the accused can be ordered:
Provided that-
(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under section 367 or section 368, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person;
(b) if the Magistrate or Court, as the case may be, is of the opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons with unsoundness of mind or intellectual disability may be ordered wherein the accused may be provided care and appropriate education and training.
Section 369(1): Release on bail and treatment undertaking
Sub-section (1) links release on bail to both the accused's clinical needs and a practical treatment-and-safety undertaking. The provision applies after the required incapacity finding under Section 367 or 368. The statutory proviso requires that the condition does not mandate in-patient treatment and that a friend or relative undertakes to secure regular out-patient psychiatric treatment from the nearest medical facility and to prevent injury.
Section 369(2): Where bail cannot be granted
If the Magistrate or Court considers that bail cannot be granted, or if the required undertaking is not given, the accused is to be kept at a place where regular psychiatric treatment can be provided. The action taken must be reported to the State Government.
The proviso specifically connects detention in a public mental health establishment with the rules made by the State Government under the Mental Healthcare Act, 2017. That Act provides the broader statutory framework for mental healthcare, services and the rights of persons with mental illness.
Section 369(3): Discharge, security and residential care
Sub-section (3) requires the Magistrate or Court to consider the nature of the act committed and the extent of the unsoundness of mind or intellectual disability when deciding whether release may be ordered.
Where medical or specialist opinion supports discharge under Section 367 or Section 368, release may be ordered on sufficient security to prevent injury to the accused or another person. Where discharge cannot be ordered, transfer to a residential facility may be directed so that care, appropriate education and training can be provided.
Related BNSS provisions
Official legal sources
Ministry of Home Affairs - New Criminal Laws
Official Ministry page providing the Bharatiya Nagarik Suraksha Sanhita, 2023 and the other new criminal laws.
Official Gazette text of the Bharatiya Nagarik Suraksha Sanhita, 2023
Enacted text of Act No. 46 of 2023.
India Code - Mental Healthcare Act, 2017
Official India Code page for Act No. 10 of 2017.
This page is a general legal information resource. For application of Section 369 to a particular case, the statutory record, medical evidence, applicable rules and orders of the competent court should be examined.