Bharatiya Nagarik Suraksha Sanhita, 2023
Section 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.
Why this exists
A person who cannot understand the proceedings against them or meaningfully instruct their own defence cannot receive a fair trial. This provision creates a careful, medically-grounded process, examination by a civil surgeon, referral to psychiatric specialists, and an appeal route through a Medical Board, to properly identify unsoundness of mind or intellectual disability before deciding whether to proceed, postpone, or discharge the case, protecting both the accused's rights and the integrity of the justice process. It reflects updated, more clinically informed language than older mental-health provisions in earlier criminal procedure law.
Common misconceptions
- Myth: A magistrate can simply decide on their own, without medical input, that an accused is mentally unfit for trial.
Fact: The law requires a structured medical process involving a civil surgeon and then a psychiatrist or clinical psychologist, with an appeal route to a Medical Board, before any such determination is acted upon.