BNSS Section 367 - Procedure in case of accused being person with mental illness

(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 and 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, and thereupon 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. 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 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.