An Accused of Unsound Mind

Sub-section (2), the referral. If the civil surgeon finds him to be of unsound mind, he shall refer him to a psychiatrist or clinical psychologist of a Government hospital or Government medical college for care, treatment and prognosis, and that specialist shall inform the Magistrate whether the accused is suffering from unsoundness of mind or intellectual disability.

Proviso, the appeal. If the accused is aggrieved by the information given, he may prefer an appeal before the Medical Board, consisting of (a) the head of the psychiatry unit in the nearest Government hospital and (b) a faculty member in psychiatry in the nearest Government medical college.

Sub-section (3). Pending examination and inquiry, the Magistrate may deal with him under section 369.

Sub-section (4), unsoundness of mind. If the Magistrate is informed that he is of unsound mind, he shall further determine whether it renders the accused incapable of entering defence. If it does, he 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 no prima facie case is made out, he shall, instead of postponing the inquiry, discharge the accused and deal with him under section 369;
• proviso: if a prima facie case is made out, 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 him to be dealt with under section 369.

Sub-section (5), intellectual disability. If the Magistrate is informed that the person has an intellectual disability, he shall determine whether it renders the accused incapable of entering defence, and if so shall order closure of the inquiry and deal with him under section 369.

Note the difference between (4) and (5). Unsoundness of mind may pass, so the proceeding is postponed for treatment. An intellectual disability does not pass, so the inquiry is closed.

Section 368: at a trial

The scheme is the same, one stage later, and before a Magistrate or a Court of Session.

Sub-section (1). If at the trial it appears that the person is of unsound mind and consequently incapable of making his defence, the Court shall in the first instance try the fact of such unsoundness and incapacity, and if satisfied after considering such medical and other evidence as may be produced, shall record a finding and postpone further proceedings.

Sub-section (2). It shall refer him to a psychiatrist or clinical psychologist for care and treatment, who shall report whether he is suffering from unsoundness of mind; with the same appeal to the Medical Board in the proviso.

Sub-section (3). On being so informed, the Court shall determine whether the unsoundness renders him incapable of entering defence; if so it records a finding, examines the prosecution's record of evidence, and after hearing his advocate but without questioning him: no prima facie case, then discharge instead of postponement, and deal with him under section 369; prima facie case, then postpone the trial for the period the specialist says treatment requires.

Sub-section (4), intellectual disability. Where a prima facie case is made out and he is incapable of entering defence by reason of intellectual disability, the Court shall not hold the trial and shall order him to be dealt with under section 369.

Section 369: what happens to him meanwhile

Sub-section (1), bail is the rule. Whenever a person is found under section 367 or 368 to be incapable of entering defence by reason of unsoundness of mind or intellectual disability, the Court shall, whether the case is one in which bail may be taken or not, order his release on bail.

Proviso, the two conditions: the condition does not mandate in-patient treatment, and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent him from doing injury to himself or to any other person.

Read sub-section (1) carefully: whether the case is one in which bail may be taken or not. This is a release that overrides the ordinary bail restrictions.

Sub-section (2), where bail is not possible. If in the Court's opinion bail cannot be granted, or an appropriate undertaking is not given, it shall order him to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government. Proviso: no order for detention in a public mental health establishment except in accordance with State Government rules under the Mental Healthcare Act, 2017.

Sub-section (3), the further determination. The Court shall, keeping in view the nature of the act committed and the extent of the unsoundness of mind or intellectual disability, further determine whether release can be ordered:

(a) where, on medical or specialist opinion, the Court decides to discharge him under section 367 or 368, release may be ordered if sufficient security is given that he will be prevented from doing injury to himself or to any other person; (b) where discharge cannot be ordered, the Court may order his transfer to a residential facility for persons with unsoundness of mind or intellectual disability, where he may be given care and appropriate education and training.

Sections 370 and 371: recovery, and resumption

Section 370(1). Whenever an inquiry or trial is postponed under section 367 or 368, the Court may at any time after the person has ceased to be of unsound mind resume it and require him to appear or be brought before it.

Sub-section (2). Where he has been released under section 369 and his sureties produce him to the officer the Court appoints, that officer's certificate that the accused is capable of making his defence shall be receivable in evidence.

Section 371(1). If, when he appears or is again brought before the Court, it considers him capable of making his defence, the inquiry or trial shall proceed.

Sub-section (2). If it considers him still incapable, it shall act under section 367 or 368 again, and if he is found of unsound mind and consequently incapable, deal with him under section 369.

Sections 372 to 374: unsoundness at the time of the act

Section 372, the sane accused who was insane then. When the accused appears to be of sound mind at the time of the inquiry or trial, and the Magistrate is satisfied from the evidence that there is reason to believe:

• that he committed an act which, if he had been of sound mind, would have been an offence; and
• that at the time of the act he was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that it was wrong or contrary to law,

the Magistrate shall proceed with the case, and if the accused ought to be tried by the Court of Session, commit him for trial there.

The point of section 372 is that this is not a reason to stop. The insanity is a defence to be tried, not an incapacity to be accommodated.

Section 373, the special finding. Whenever a person is acquitted on the ground that at the time of the alleged offence he was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not.

That sentence carries the whole weight of what follows, because section 374 attaches only where the finding says he did commit the act.

Section 374, safe custody.

Sub-section (1). Whenever the finding states that he committed the act alleged, the Court shall, if the act would but for the incapacity found have constituted an offence, either:

(a) order him to be detained in safe custody in such place and manner as the Court thinks fit; or (b) order him to be delivered to any relative or friend.

Sub-section (2). No order of detention in a public mental health establishment under clause (a) except in accordance with State Government rules under the Mental Healthcare Act, 2017.

Sub-section (3). No order of delivery under clause (b) except on the application of the relative or friend, and on his giving security to the Court's satisfaction that the person delivered will: (a) be properly taken care of and prevented from doing injury to himself or to any other person; and (b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

Sub-section (4). The Court shall report the action taken to the State Government.

Sections 375 to 378: after detention

Section 375. The State Government may empower the officer in charge of the jail in which a person is confined under section 369 or 374 to discharge all or any of the functions of the Inspector-General of Prisons under section 376 or 377.

Section 376, capable of making his defence. If a person is detained under section 369(2) and the Inspector-General of Prisons (for a person in jail) or the Mental Health Review Board constituted under the Mental Healthcare Act, 2017 (for a person in a public mental health establishment) certifies that in his or their opinion he is capable of making his defence, he shall be taken before the Court at the time it appoints, and the Court shall deal with him under section 371; and the certificate is receivable as evidence.

Section 377, fit to be released.

Sub-section (1). If a person is detained under section 369(2) or section 374 and the Inspector-General or visitors certify that in his or their judgment he may be released without danger of doing injury to himself or to any other person, the State Government may order him to be released, or detained in custody, or transferred to a public mental health establishment if not already sent there; and if it orders a transfer, it may appoint a Commission consisting of a Judicial and two medical officers.

Sub-section (2). That Commission shall make a formal inquiry into his state of mind, take such evidence as is necessary, and report to the State Government, which may order his release or detention as it thinks fit.

Section 378, delivery to a relative or friend.

Sub-section (1). Whenever a relative or friend of a person detained under section 369 or 374 desires that he be delivered to his care and custody, the State Government may, on his application and on his giving security to its satisfaction that the person will: (a) be properly taken care of and prevented from doing injury to himself or others; (b) be produced for inspection by such officer, at such times and places, as the State Government directs; and (c) in the case of a person detained under section 369(2), be produced when required before the Court,

order him to be delivered to that relative or friend.

Sub-section (2). If the person so delivered is accused of an offence whose trial was postponed by reason of his unsoundness of mind and incapacity, and the inspecting officer certifies at any time that he is capable of making his defence, the Court shall call upon the relative or friend to produce him, and on production shall proceed under section 371; and the inspecting officer's certificate is receivable as evidence.

A worked example

Feroz is charged with causing grievous hurt. At the inquiry the Magistrate notices that he cannot follow anything said to him.

First step. The Magistrate inquires into the fact, has him examined by the civil surgeon of the district, examines the surgeon as a witness, and reduces the examination to writing, section 367(1).

The civil surgeon finds unsoundness. He refers Feroz to a psychiatrist of a Government hospital for care, treatment and prognosis, and that psychiatrist informs the Magistrate whether it is unsoundness of mind or intellectual disability, section 367(2).

Feroz disputes that opinion. He may appeal to the Medical Board: the head of the psychiatry unit of the nearest Government hospital and a faculty member in psychiatry of the nearest Government medical college, proviso.

The report says unsoundness of mind. The Magistrate determines whether it makes him incapable of entering defence, records a finding, then examines the prosecution's record of evidence and hears his advocate but does not question him, section 367(4).

On that record there is no prima facie case. Then no postponement: the Magistrate discharges Feroz and deals with him under section 369.

Change it: there is a prima facie case. Then he postpones the proceeding for the period the psychiatrist says treatment requires, and again deals with him under section 369.

What does section 369 do? Bail is the rule: whether or not the case is bailable, he is released on bail, if his condition does not require in-patient treatment and a friend or relative undertakes out-patient treatment and to prevent injury to himself or others. If bail is not possible or no undertaking is given, he is kept where regular psychiatric treatment can be given, and the State Government is informed.

Six months later he recovers. The Court resumes the inquiry, section 370(1); if he was on bail, the certificate of the appointed officer that he is capable of making his defence is receivable in evidence, section 370(2). If the Court finds him capable, the inquiry proceeds, section 371(1); if still incapable, the whole exercise begins again, section 371(2).

Now change the facts entirely. Feroz is perfectly sane at the trial, but the evidence suggests that when he struck the blow he did not know the nature of the act. That is section 372: the Magistrate proceeds with the case, and commits it to the Court of Session if it ought to be tried there.

The Court of Session acquits him on that ground. The finding must state specifically whether he committed the act, section 373.

It states that he did. Then the Court shall either detain him in safe custody in a place and manner it thinks fit, or deliver him to a relative or friend on that person's application and security that he will be cared for, prevented from doing injury, and produced for inspection as the State Government directs; and the Court reports the action to the State Government, section 374.

Years later. If the Inspector-General or visitors certify he may be released without danger, the State Government may release, detain, or transfer him, and on a transfer may appoint a Commission of a Judicial and two medical officers to inquire and report, section 377.

Distinctions

What this does NOT mean

It does not mean an incapable accused is simply held. Section 369 makes bail the rule, expressly overriding whether the case is one in which bail may be taken.

It does not mean the prosecution's case escapes scrutiny. Sections 367(4) and 368(3) require the Court to examine the record of evidence and hear the accused's advocate, and to discharge him if no prima facie case is made out.

Unsoundness of mind and intellectual disability are not the same. One leads to postponement for treatment; the other to closure of the inquiry, or to the trial not being held.

An acquittal under section 373 is not an ordinary acquittal. The finding must say whether he committed the act, and if it says he did, section 374 follows.

And delivery to a relative is not release. It requires that person's application and security, and the person delivered must be produced for inspection and, in a section 369(2) case, before the Court when required.

Quick revision

• 367: Magistrate in inquiry, examination by the civil surgeon, referral to a psychiatrist or clinical psychologist, appeal to a Medical Board; determine incapacity, examine the prosecution record, hear the advocate, do not question the accused; no prima facie case, discharge; prima facie case, postpone for the treatment period; intellectual disability, close the inquiry.
• 368: the same at trial before a Magistrate or Court of Session; try the fact first, record a finding, postpone; intellectual disability with a prima facie case, do not hold the trial.
• 369: bail whether the case is bailable or not, if no in-patient treatment is needed and a friend or relative undertakes; else kept where psychiatric treatment is available and the State Government is informed; discharge on sufficient security, or transfer to a residential facility with care, education and training.
• 370 and 371: resume on recovery; the appointed officer's certificate is evidence; if capable, proceed; if not, begin again.
• 372: sane now, insane then, then proceed and commit to the Court of Session if it ought to be tried there.
• 373: an acquittal on that ground must state specifically whether he committed the act.
• 374: if he did, safe custody or delivery to a relative or friend on application and security; no public mental health establishment except under Mental Healthcare Act, 2017 rules; report to the State Government.
• 375 to 378: the jail officer may be empowered for the Inspector-General's functions; a certificate of capacity brings him back under section 371; a certificate that he may be released without danger lets the State Government release, detain or transfer, with a Commission of a Judicial and two medical officers; a relative or friend may take custody on security, and must produce him when he becomes capable.

Test yourself

1. What is the test in sections 367 and 368? Whether the accused, by reason of unsoundness of mind, is incapable of making his defence, that is, incapable at the time of the inquiry or trial.

2. What does the Magistrate do if no prima facie case appears on the prosecution's record? Instead of postponing the inquiry he discharges the accused and deals with him under section 369, sections 367(4) and 368(3).

3. Where the accused disputes the psychiatrist's opinion, what remedy has he? An appeal to a Medical Board consisting of the head of the psychiatry unit in the nearest Government hospital and a faculty member in psychiatry in the nearest Government medical college.

4. Is bail available to an accused found incapable of entering defence in a non-bailable case? Yes. Section 369(1) directs release on bail whether or not the case is one in which bail may be taken, provided in-patient treatment is not required and a friend or relative gives the undertaking in the proviso.

5. How is intellectual disability treated differently? The inquiry is ordered to be closed, section 367(5), and where a prima facie case is made out at trial the Court shall not hold the trial, section 368(4); in both the accused is dealt with under section 369.

6. What must a judgment of acquittal on the ground of insanity state? Specifically whether the accused committed the act or not, section 373.

7. What follows a finding that he did commit the act? The Court shall order him detained in safe custody in such place and manner as it thinks fit, or delivered to a relative or friend on that person's application and security, and shall report the action taken to the State Government, section 374.