Section 367 of BNSS, 2023 (THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023)
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 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.
Advocate Anoop Verma, Punjab and Haryana High Court, Chandigarh
+91-9463742964
advanoopverma@gmail.com