Section 376 BNSS: Procedure where prisoner of unsound mind is reported capable of making his defence
Section 376 of the Bharatiya Nagarik Suraksha Sanhita, 2023 sets out what happens when a person detained under Section 369(2) is later certified as capable of making his defence.
What Section 376 BNSS provides
The provision applies to a person detained under Section 369(2) after being found incapable of entering a defence because of unsoundness of mind or intellectual disability. If the competent authority later certifies that the person is capable of making a defence, the person must be produced before the Magistrate or Court at the time fixed by that Court.
Meaning and procedure under Section 376
- Person covered: a person detained under Section 369(2).
- If detained in jail: the relevant certification is by the Inspector-General of Prisons, subject to any lawful delegation contemplated by Section 375.
- If detained in a public mental health establishment: the provision refers to the Mental Health Review Board constituted under the Mental Healthcare Act, 2017.
- Effect of certification: the person is brought before the Magistrate or Court at the time appointed by it.
- Next judicial step: the Magistrate or Court proceeds under Section 371 BNSS.
- Evidentiary value: Section 376 states that the specified certificate is receivable as evidence.
How Section 371 operates after production before Court
Section 371 is the procedural link built into Section 376. When the accused appears or is brought again before the Magistrate or Court, the Court considers whether the accused is capable of making a defence. If the Court considers the accused capable, the inquiry or trial proceeds. If the accused is still incapable, the Court follows the statutory procedure under Sections 367 or 368 and, where applicable, Section 369.
Relationship with Section 369(2)
Section 369 deals with the release or treatment arrangements for an accused found incapable of entering a defence because of unsoundness of mind or intellectual disability. Sub-section (2) addresses the situation where bail cannot be granted or the required undertaking is not given, permitting the Court to order that the accused be kept at a place where regular psychiatric treatment can be provided. Section 376 becomes relevant when a person detained under that provision is later reported capable of making a defence.
Mental Health Review Board under the Mental Healthcare Act, 2017
The Mental Healthcare Act, 2017 provides for Mental Health Review Boards. Section 73 of that Act empowers the State Authority to constitute such Boards and to specify their number, location and jurisdiction. Section 376 BNSS expressly refers to the Mental Health Review Board where the detained person is in a public mental health establishment.
Section 376 BNSS at a glance
| Issue | Position under Section 376 |
|---|---|
| Trigger | A person detained under Section 369(2) is certified capable of making a defence. |
| Jail detention | Certification is contemplated from the Inspector-General of Prisons. |
| Mental health establishment | The section refers to the Mental Health Review Board under the Mental Healthcare Act, 2017. |
| Production before Court | The person is taken before the Magistrate or Court at the time appointed by it. |
| Further proceedings | The Magistrate or Court acts under Section 371 BNSS. |
| Certificate | The certificate specified in the section is receivable as evidence. |
Drafting note: The final words of the enacted Section 376 use the expression "Inspector-General or visitors" even though the same provision earlier refers to the Mental Health Review Board. This page preserves the statutory wording rather than silently altering it.
Frequently asked questions
What is the purpose of Section 376 BNSS?
It provides the procedure for bringing a detained person back before the criminal court when the competent authority reports that the person has become capable of making a defence.
Does a certificate automatically restart the trial?
The certificate leads to production of the person before the Magistrate or Court. The Court then acts under Section 371 and decides whether the accused is capable of making a defence and whether the inquiry or trial should proceed.
When did the BNSS come into force?
The Bharatiya Nagarik Suraksha Sanhita, 2023 was enacted as Act 46 of 2023 and, under the Central Government notification dated 23 February 2024, its provisions came into force on 1 July 2024, subject to the notified exception concerning the First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.