Accused Persons of Unsound Mind Sections 367 to 378

Sections 367 and 368, BNSS 2023 — the substance

Section 367. Where a Magistrate holding an inquiry has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, he shall inquire into the fact of such unsoundness, and shall cause him to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and shall examine that officer as a witness and reduce the examination to writing. Pending the inquiry the Magistrate may deal with the accused in accordance with section 369. If the Magistrate is of opinion that he is of unsound mind and consequently incapable of making his defence, he shall record a finding and postpone further proceedings.

Section 368. Where a Magistrate or Court of Session trying the case finds the accused to be of unsound mind and consequently incapable of making his defence, it shall in the first instance try the fact of such unsoundness and incapacity, and if satisfied, shall record that finding and postpone the trial.

📖 Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495

Facts: The accused relied on the defence of unsoundness of mind, producing material that he had suffered from mental illness. The question was what an accused must establish to succeed in that defence, and what standard applies to him.

Held: The Supreme Court held that every person who is mentally ill is not ipso facto exempted from criminal responsibility, and drew the fundamental distinction between legal insanity and medical insanity. What the substantive provision requires is legal insanity: that at the time of the act, by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. A person may be suffering from a diagnosed mental illness and still know perfectly well what he is doing and that it is wrong; such a person is medically but not legally insane, and the defence fails. The Court held that the burden of establishing legal insanity lies on the accused, though he discharges it on the standard of preponderance of probabilities and not beyond reasonable doubt; and that the crucial time is the moment of the commission of the act, so that evidence of illness before or after is relevant only as it bears on his state of mind then.

Ratio: Mental illness does not by itself exempt from criminal responsibility. The defence requires legal insanity — incapacity at the time of the act to know its nature, or that it was wrong or contrary to law — and the burden is on the accused on a preponderance of probabilities.

📖 Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109

Facts: The accused pleaded unsoundness of mind, and the Court was required to explain what the expression covers and how a court should approach the material placed before it.

Held: The Supreme Court explained that the law recognises no precise definition of unsoundness of mind, and that courts have treated the expression as equivalent to insanity while emphasising that the term itself has no precise meaning and covers different degrees of mental defect. The Court described four kinds of persons who may be said to be of unsound mind: idiots, those made so by illness, lunatics or madmen, and those who are drunk. It reiterated that what the law requires is legal insanity, not medical insanity, and that the onus of proving the circumstances bringing the case within the exception lies on the accused. The Court held that the material must relate to the state of mind at the time of the offence, and that a court should examine the conduct of the accused before, during and after the act — whether he took precautions, whether he attempted to escape, whether he understood what he had done — since that conduct is often the best evidence of whether he knew the nature of his act.

Ratio: Unsoundness of mind has no precise definition and covers different degrees of mental defect. What the law requires is legal insanity, the onus lying on the accused, and the conduct of the accused before, during and after the act is often the best evidence of his state of mind.

⚠ Three points that follow from keeping the two apart

They are decided at different times on different material. Fitness is decided now, on a medical examination and the evidence of the examining officer. The defence is decided at the trial, on evidence about the accused’s state of mind at the time of the act.

They are raised by different people. Fitness is a matter the Court must inquire into of its own motion the moment it has reason to believe the accused is incapable. The defence is raised by the accused, who carries the burden.

And they produce different outcomes. A finding of unfitness postpones the proceedings, which resume when the accused recovers. A finding of legal insanity produces an acquittal, with a specific finding whether he committed the act, followed by detention in safe custody where he did.

The position stated shortly

1. Chapter XXVII deals with two different questions: whether the accused can be tried at all (sections 367 to 372), and whether he is criminally responsible (sections 373 to 378).

2. Section 367: a Magistrate holding an inquiry who has reason to believe the accused is of unsound mind and incapable of making his defence shall inquire into the fact, have him examined by the civil surgeon, examine that officer as a witness, and postpone the proceedings on a finding of unsoundness.

3. Section 368: a Magistrate or Court of Session trying the case shall first try the fact of unsoundness and incapacity, record a finding, and postpone the trial.

4. Section 369: the person may be released on sufficient security that he will be properly taken care of, prevented from doing injury, and produced when required; failing which he is detained in safe custody and the action reported to the State Government.

5. Sections 370 to 372: the proceedings resume when he ceases to be of unsound mind; where he still appears unable to make his defence, the Court proceeds again under sections 367 or 368.

6. Section 373: where the accused appears to have been of unsound mind at the time of the act, the Court shall find so specifically and record whether he committed the act or not.

7. Section 374: where the finding is that he committed the act, the Court shall order detention in safe custody and report to the State Government. Sections 375 to 378 govern discharge, release, and delivery to a relative or friend on security.

8. The defence requires legal insanity, not medical insanity: incapacity at the time of the act to know its nature, or that it was wrong or contrary to law: Surendra Mishra.

9. The burden is on the accused, discharged on a preponderance of probabilities, and the crucial time is the moment of the act.

10. Unsoundness of mind has no precise definition and covers different degrees of mental defect; the conduct of the accused before, during and after the act is often the best evidence of his state of mind: Hari Singh Gond.