2/24/24, 2:02 AM Criminal procedure in case of person of unsound mind - iPleaders

Criminal procedure in case of person of

unsound mind
By Sneha Mahawar - December 18, 2021

Image source - https://bit.ly/3fidXoO

This article is written by Nipun Raj, a student of Amity Law School, Ranchi. The article
explains the criminal proceedings related to person of unsound mind under The Code of
Criminal Procedure, 1973.

This article has been published by Sneha Mahawar.

Table of Contents

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1. Introduction
2. Criminal proceedings related to unsound mind
2.1. Section 328– procedure in case of the accused being a lunatic
2.2. Section 329– procedure where a person of unsound mind is tried before the court
2.3. Section 330- release of a person of unsound mind pending investigation or trial
2.4. Section 331- resumption of inquiry or trial
2.5. Section 332- procedure of accused appearing before the magistrate or the court
2.6. Section 333- when accused appears to have been of sound mind
2.7. Section 334- judgement of acquittal of the accused on the ground of unsoundness of
mind
2.8. Section 335- person acquitted on such ground to be detained in safe custody
2.8.1. Responsibilities of a relative or friend
2.9. Section 336- the power of state government to empower officer in charge to discharge
2.10. Section 337- procedure where the lunatic prisoner is reported capable of making his
defence
2.11. Section 338- procedure where a lunatic detained is declared fit to be released
2.12. Section 339- delivery of lunatic to the care of relative or friend
3. Notable case laws related to person of unsound mind
3.1. State of Maharashtra v. Sindhi (1975)
3.2. I.V. Shivaswamy v. State of Mysore (1971)
4. Conclusion
5. References

Introduction
The Code of Criminal Procedure, 1973 intends to give a mechanism for smoother delivery
of justice. Since CrPC deals with the arrest and trial of the person, it is very necessary
that fairness should be there to establish the lawful detainment of a person from his
liberty.

When a person is unable to understand things, he is said to be of unsound mind. Idiocy,

madness, alcoholism, and mental degeneration are all examples of unsoundness.
According to Section 84 of the Indian Penal Code, 1860, “Nothing constitutes an offence
done by a person who, at the time of committing it, by reason of unsoundness of mind,
is incapable of comprehending the nature of the conduct, or that he is doing what is
either improper or contrary to law”.

In other words, an act committed by a person of unsound mind is not considered an

offence and falls under the category of ‘General Exceptions’. Here, the caring attitude
towards people who are mentally ill is maintained.

CrPC Chapter XXV Sections 328 to 339 makes provisions for accused persons of unsound
mind. These provisions are in the best interests of the mentally ill.

Criminal proceedings related to unsound mind

The following are the criminal procedures related to a lunatic or an individual of unsound
mind under CrPC –

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Section 328– procedure in case of the accused being a

lunatic
According to Section 328 of the Act, if the magistrate believes that the person being
investigated is unable to defend himself or is mentally ill, the magistrate must guarantee
that the subject is evaluated by a medical professional during the investigation.

If the defendant is unable to defend himself, the magistrate will hear the prosecution and
examine the records.

The magistrate shall postpone the proceeding for a limited term until the person’s
unsoundness is remedied, based on medical proof.

In the case of Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) (2011),
it was contended that the evidence on record shows that the appellant was examined by
various doctors prior to the start of the trial by the learned Metropolitan Magistrate in
proceedings under Section 328 CrPC and was found to be a man of unsound mind, and
the learned M.M. also passed an order in this regard and the trial began only after he
was declared mentally fit.

Section 329– procedure where a person of unsound

mind is tried before the court
According to Section 329 of the Act, if the magistrate believes the person being tried is of
sound mind and incapable of self-defence, the magistrate ensures this by having the
subject evaluated by a medical professional. If the defendant is unable to defend himself,
the magistrate will hear the prosecution and examine the records. The magistrate shall
record such a determination and postpone the hearing based on medical evidence.

The fact of insanity throughout the trial will be considered part of the proceedings.

In the case of Kulwinder Singh v. State of Haryana (2011), it was stated that since
Section 329 of CrPC relates to the trial of a person of unsound mind and that the
application has been filed during the trial Section 329 of the Cr.P.C. would be applicable.

Section 330- release of a person of unsound mind

pending investigation or trial
According to Section 330 of the Act, If the person is found unsound or incapable of
making his defence during the inquiry and trial (Sections 328 and 329), regardless of
whether the offence is bailable or not, the Court may release him. In other words, if the
offence is non bailable, the magistrate must grant bail as well. If, on the other hand, bail
cannot be granted, the accused must be kept in a location where he can receive
treatment.

In the case of Kanhaiya v. State of U.P. (2018), the learned Additional Sessions Judge
noted that a doctor at the mental hospital in Varanasi had opined that he was an accused

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of unsound mind, and ordered that the accused be sent under a detention warrant to the
mental hospital in Varanasi, where the accused-applicant was being treated, as noted in
his decision. He opined that there was no good reason to release the applicant on bail,
and he denied the applicant’s bail application under Section 330 of the CrPC.

Section 331- resumption of inquiry or trial

According to Section 331 of the Act, when the inquiry and trial are postponed or
suspended, the magistrate shall summon the person after he or she regains mental
soundness or ceases to be insane and resume the inquiry and trial.

In the case of Subhash Bhardwaj v. State (2016), the Court concluded that the trial will
be scheduled after the trial court receives the IHBAS report and completes its
investigation pursuant to Section 331 CrPC.

Section 332- procedure of accused appearing before the

magistrate or the court
According to Section 332 of the Act, If the accused appears before the magistrate and
the court believes he is capable of presenting his defence, the investigation and trial will
continue.

If the person is still unable to recover from his condition, the provisions of Section 330
will apply once more.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court said that the trial will
continue as the accused is capable of presenting his defence.

Section 333- when accused appears to have been of

sound mind
According to Section 333 of the Act, when the magistrate has reason to believe the
individual is of sound mind and there is also evidence that acts were committed by the
accused, when the act was committed by the accused, and when the act was committed
while the accused was of sound mind. The magistrate will then proceed with the case.

In the case of Dimple @ Dimpu @ Gurcharan v. State of Punjab (2008), the court stated
that the petitioner is opined to be suffering from that form of insanity at the time of the
commission of the offence which may render him incapable of knowing the nature and
quality of his act when he committed the same, so Section 333 comes into play.

Section 334- judgement of acquittal of the accused on

the ground of unsoundness of mind
According to Section 334 of the Act, if a person is acquitted on the grounds of insanity
and is unable to identify the nature of the act, the findings must state whether the act
was committed by the accused or not.

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In the case of Abdul Latif v. The State of Assam (1981), the Court came to the
conclusion that the accused was incompetent to know the nature of the act or that he
was doing something that was either illegal or against the law at the critical moment. As
a result, they overturned the convictions and punishments, accepted the plea of insanity,
granted the appeal, and found the appellant not guilty.

Section 335- person acquitted on such ground to be

detained in safe custody
According to Section 335 (1) of the Act, if a person is acquitted by a magistrate on the
grounds of insanity, he or she should be detained in safe custody or should be delivered
to a family member or friend.

When it comes to delivering an accused person to a relative or friend, the court can only
do so if the relative or friend makes an application to the magistrate and the friend or
relative assures the court of security.

Responsibilities of a relative or friend

He must take proper care of that individual.

When necessary, the relative or friend should present that person for inspection as
directed by the state government.

In the case of Niman Sha v. State of M.P. (1995), the Court decided, based on the
heinous crime the accused had committed and his mental state, as well as the risks to
society, that the accused be imprisoned at the mentioned Institute of Mental Health in
Gwalior until he regains normalcy after receiving medical treatment.

Section 336- the power of state government to empower

officer in charge to discharge
According to Section 336 of the Act, the State Government may delegate all or all of the
functions of the Inspector-General of Prisons under Section 337 or Section 338 to the
official in charge of the jail in which a person is imprisoned under the provisions of
section 330 or section 335.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court ordered
that a copy of the judgment shall also be sent to the Inspector General of Prisons who is
empowered in terms of Section 336 to perform and discharge the functions under
Sections 337 and 338 of Criminal Procedure Code for further necessary action in the
matter.

Section 337- procedure where the lunatic prisoner is

reported capable of making his defence
According to Section 337 of the Act, the magistrate must proceed with Section 332 if it is
determined that the lunatic is now capable of defending himself.

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In the case of Emperor v. Motilal Hiralal (1921), the Court continued the trial as the
accused is capable of defending himself.

Section 338- procedure where a lunatic detained is

declared fit to be released
According to Section 338 of the Act, if a person is detained under Section 330 on the
grounds of insanity and the authorised person or inspector general certifies that the
person is fit to be released, detained by the authorities, transferred to a public mental
institution then there should be no damage in doing so and the government may then
release the individual.

If a person is committed to a public mental institution, a commission must be formed to

conduct an official investigation into their mental health and issue a report, which must
be sent to the state government.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court has
directed that the petitioner be kept in safe custody for the present in Amravati Jail till the
State Government takes action in the matter. The State Government may decide where
the appellant is to be kept pending action under Sections 338 or 339 of Criminal
Procedure Code as the case may require.

Section 339- delivery of lunatic to the care of relative or

friend
According to Section 339 of the Act, if a person’s relative or friend wishes for the person
to be released to him, the relative or friend must apply to the State Government for such
a release.

The State Government will only accept such an application or grant the request if the
person delivers :-

Properly cared for without causing harm to himself or others

Produced for inspection when necessary

Produced before a magistrate when necessary

When the accused is able to defend himself, the accused’s relative or friend is
summoned, and a certificate of inspection is kept as evidence.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court has said that as per
Sections 338(1) and 339(1), CrPC, the State Government may make suitable directions
to deliver the appellant to any of his relatives or friends when he is fit.

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Notable case laws related to person of unsound

mind

State of Maharashtra v. Sindhi (1975)

In this case, the Court held that the accused could not be declared to be incapable of
defending himself because he was fully aware of the nature of the crime he had
committed and the proceedings against him. The specialist has been called to ensure
mental insanity. The High Court carefully considered their testimony before recording its
own conclusions on the key issues.

I.V. Shivaswamy v. State of Mysore (1971)

In this case, the Court ruled that the investigation will be conducted only if the
magistrate is satisfied that the accused is insane or of unsound mind. However, if there is
no possibility of unsoundness, such an investigation will not take place. In the event of a
doubt, an investigation is required.

Conclusion
It can be concluded that such provisions are in the best interests of those who are
mentally ill and incapable of self-defence. During the period of his insanity, the
magistrate has the authority to postpone the trial or procedures.

After he has recovered his health or is capable of defending himself, the court will
proceed as if he is of sound mind. Such a person must be maintained in a secure
environment or in safe custody. A relative or acquaintance of that person may file a
petition to the magistrate for release if that person is mentally ill. We can see the court’s
concern for the mentally ill in this case. Such provisions are required to achieve proper
justice.

References
1. https://lawcorner.in/provisions-of-cr-p-c-relating-to-the-persons-of-unsound-
mind/#Provisions_as_to_accused_person_of_unsound_mind

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