Code: Section 367 BNSS
367.
(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is a person with mental illness and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such mental illness. The Magistrate shall cause such person to be examined by the civil surgeon of the district or such other medical person as the State Government may direct. Thereafter, the Magistrate shall examine such surgeon or other medical person as a witness, and shall reduce the examination to writing.
(2) If the civil surgeon finds the accused to be a person with mental illness, he shall refer such person to a psychiatrist or clinical psychologist of a Government hospital or Government medical college for care, treatment, and prognosis of the condition. The psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from mental illness:
Provided that if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist 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) has mental illness, the Magistrate shall further determine whether the mental illness renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect. The Magistrate 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 inquiry, 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 mental illness 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 mental illness, the Magistrate shall further determine whether the mental illness renders the accused incapable of entering defence. 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.
Explanation of Section 367 BNSS
Section 367 provides the process for when a Magistrate suspects that an accused person is mentally ill and unable to defend themselves. The section outlines the required medical examinations and steps to determine whether the mental illness impedes the accused’s ability to make their defence. Based on the findings, the Magistrate may either discharge the accused or postpone the inquiry for treatment.
Illustration
Example 1: Inquiry with Mental Illness
A Magistrate conducting an inquiry suspects that the accused may be mentally ill and incapable of defending themselves. The Magistrate orders a medical examination, which confirms the accused has mental illness. The Magistrate then orders treatment and postpones the inquiry for further evaluation.
Example 2: Accused Found Incapable of Defence
After a psychiatric evaluation, the accused is determined to be incapable of entering their defence due to mental illness. The Magistrate discharges the accused under Section 369.
Common Questions & Answers
Q: Can the accused appeal if they disagree with the psychiatric assessment?
A: Yes, under Section 367(2), if the accused disagrees with the psychiatric or clinical psychologist’s opinion, they can appeal to the Medical Board.
Q: What happens if the accused is found incapable of making a defence due to mental illness?
A: If the accused is found to be incapable of making a defence, the Magistrate may discharge them or postpone the trial until they have received appropriate treatment, as outlined in Section 369.
