Provisions as to accused persons of unsound mind

accused persons of unsound mind

The Indian Penal code deals with the defense of insanity under Section 84 and Criminal procedure Code deals with accused persons of unsound mind under chapter 25 of the code in Sections 328 to 338. The general rule is that any act done by a person with unsound mind is not a crime but it has to be proved that at the time commission of offence he was at the state of unsound mind. An accused being of an unsound mind will not understand the nature of act he commits. The protection given to these type of people gives a humane approach to the accused of unsound mind.

Section 328 to 339 of Criminal Procedure Code

Section 328 : Procedure in cases in which accused being lunatic

Clause 1 : In this section, when a magistrate is conducting an inquiry and if he has reasons to believe that the person being examined is of unsound mind and incapable of giving his defense . Then the magistrate shall conduct inquiry about the fact of unsoundness of mind and direct a civil surgeon of the district or any medical officer of state government to examine such person. Then he shall examine such medical officer as a witness and shall reduce the examination in writing.

Clause ( 1A ): If the medical officer finds the accused to be of unsound mind then he shall refer such person to a psychiatrist or clinical psychologist. He shall inform the Magistrate whether the accused is suffering from mental retardation or unsoundness of mind.

Provided that if the accused is aggrieved by the information given by psychiatrist or psychologist to the Magistrate then he may prefer to appeal before the medical board. The medical board consists of:

  • Head of psychiatry unit of Government hospital.
  • A faculty member in psychiatry of a medical college.

Clause 2: The Magistrate may deal with the accused person in accordance with Section 330 in pending inquiry and examination.

Clause 3: If the Magistrate is informed that the person is of unsound mind as mentioned in sub section (1A) then he further determines whether the unsoundness of mind renders the accused incapable of defending himself . If the Magistrate believes that the accused is incapable to defend himself then he shall record a finding to that effect and examine the record evidence produced by prosecution. The magistrate has to question the advocate not the accused if he finds out that no prima facie case is made out against the accused and he shall discharge the accused instead of postponing the enquiry. It should be followed in the manner provided under Section 330. Provided that if prima facie case is found against the accused person then he shall postpone the proceeding with the opinion of the psychiatrist or psychologist for the treatment of the accused.

Clause 4: If the accused is suffering from mental retardation then he shall be examined whether he can defend himself. If the accused is found incapable then the Magistrate shall deal with the accused in the manner provided under Section 330.

Section 329 : Procedure of persons of unsound mind tried before court

The procedure is same as given Section 328 but the only difference is Section 328 is when the magistrate is holding an enquiry and Section 329 deals with the trial of person before a Court of session or Magistrate.

Section 330 : Release of the person of unsound mind pending in trial or investigation

Sub section 1: Whenever a accused of unsound mind is found then he shall be released whether the offence is bailable or not.

Provided that the accused is suffering from mental retardation or unsoundness of mind which does not require in-patient treatment and there is a friend or relative who takes responsibility of that person will not cause injury to himself or any other person.

Sub section 2: If an offence is such that where a bail cannot be given then the Magistrate shall order such person to be kept at a place where he can get regular psychiatric treatment and report action taken to the State Government.

Provided that no order of detention shall be given to such person in a lunatic asylum otherwise than in the accordance to the rules of the State Government under Mental Health Act,1987.

Sub section 3: When a person is found to be under Section 328 or Section 329, the Magistrate or the Court keeping in mind the nature of offence committed decide whether the accused has to be released or not.

Provided that:

  • The Magistrate or Court on the opinion of medical specialist decide whether the accused should be discharged if such release may be ordered with sufficient security is given that the accused will not cause injury to any person or himself.
  • If the Court or Magistrate cannot discharge the accused then he can transfer him to a residential place where the accused is provided with proper care and appropriate training and education.

Section 331: Resumption of trail or inquiry

Sub section 1: If a trail is postponed due to the accused being unsound or mentally retarded then the Magistrate or Court can resume his inquiry or trial and the accused has to appear before such court or Magistrate when he cease to be of unsound mind.

Sub section 2: When the accused is released under Section 330 and the sureties for his appearance produce him to the officer who the Court or Magistrate appoints and the certificate of such officer that the accused is capable of defending himself has to be given as evidence.

Section 332 : Procedure of accused person appearing before Court or Magistrate

Sub section 1: If the Magistrate or Court finds the accused person of being defending himself then the inquiry or the trail shall be proceeded.

Sub section 2: If the Magistrate or Court considers that the accused is being able to make defense then they shall act according to Section 328 or Section 329. If the accused is of unsound mind and is not able to defend himself then they shall deal the accused according to the provisions of Section 330.

Section 333 : When accused appears to be of Sound mind

Before Magistrate or a Court, the accused appears to be of sound mind at the time of inquiry or trail then the evidence produced is satisfies that the accused as committed an act. Then at the time of commission the accused was of sound mind then the Magistrate shall proceed with the case or send it to session judge if required by law.

Section 334 : Judgment of acquittal on the basis of unsoundness of mind

Whenever any person is acquitted upon the ground of unsoundness of mind that he was incapable knowing the nature of act would be recognized as wrong or contrary to law , then the finding shall state specifically whether the act was done by the accused or not.

Section 335 : Person acquitted should be detained in safe custody

Sub section 1: When a person is acquitted by Magistrate or Court on the ground of unsoundness of mind then such person be :

1. Detained in safe custody in such a place where the Magistrate may deem fit

2. Delivered to the relative or friend

Sub section 2: No order of detention of accused on a lunatic asylum  shall be given under clause (a) of sub section (1) unless otherwise in accordance with rues of State Government made under Indian Lunacy Act, 1912.

Sub section 3: No such order of clause (b) of sub section 1 shall be given otherwise on an application given by a friend or relative and only after providing security to the satisfaction of Magistrate or Court, the person can be delivered shall:

1. properly take care of the person from doing any injury to himself or any other person

2. to be produced for inspection at any such time or place as the State Government directs.

Sub section 4: For the action taken under Sub section (1), the Magistrate or Court shall report to the State Government.

Section 336 : Power to empower officer on charge to discharge

State Government shall empower the officer in charge of the jail where a person has been lodged under Section 330 or Section 335 to discharge all functions or any of them of the Inspector General of Prisons under Section 337 or Section 338.

Section 337 : Procedure when lunatic person is capable of defending himself

When a person is found to be capable of defending himself then the Magistrate or Court can proceed with the Section 332 of the Act.

Section 338 : Procedure followed when a lunatic person detained is declared fit to be released.

Sub section 1: If a person is detained and Inspector General or visitor certifies with their judgment that he may not cause damage to himself or any other person then the State Government order him:

  • to be released
  • to be detained in custody
  • transferred to public lunatic asylum

For sending him to a asylum there should be a commission to constitute it. it should consist of judicial officer and 2 medical officers.

Sun section 2: Such commission shall make a formal inquiry into the state of mind of that person and take evidence that is necessary and shall report it to State Government, which may order him release or detention.

Section 339 : Delivery of lunatic person to his relative or friend

Sub section 1 : Whenever any relative or friend of any person detained under Section 330 or Section 335 wants to take the custody of accused person then he shall write an application and provide security to State Government that the person delivered shall

1. be properly taken care without injuring himself or any other person

2. be produced whenever an inspection is needed

3. be produced before Magistrate or Court whenever required.

Sub section 2: If the accused is deemed fit to defend himself then the relative or friend maybe called upon to produce him before Magistrate or Court and shall deal with him according to Section 332 and certificate of inspection shall be kept as evidence.


Illustration 1 : Jai Shankar v. State of Himachal Pradesh[i]

It was held that provision of Section 328 is mandatory. The Magistrate should find out whether the person is of unsound mind by taking help of medical practitioners. Once if the person is found to be of unsound mind then the next thing he has to find whether he can defend himself.

Illustration 2 :  State of Karnataka v. Jatli [ii]

The accused set fire to a house and assaulted his wife and children. He neither took the plea of insanity nor the prosecution referred to it. The trail Judge may resolve the issue by making decision on evidence produced by a competent medical person. The judge cannot take decision in the absence of such evidence.

Illustration 3 : Legal Remembrancer v. Srish Chandra Roy[iii]

The court held that safe custody does not mean custody of friends or relative.                                    

Illustration 4 : Gurjit Singh v. State of Punjab[iv]

There should be medical evidence to prove unsoundness of mind and then only plea of insanity can be given. If the trail has not recorded such evidence then the trial can be vitiated.

Illustration 5 : V.Shivaswamy v. State[v]

An enquiry shall be conducted only if the accused appears to be insane or else Magistrate shall not conduct an enquiry. If there is any serious conflict or doubt then a proper enquiry should be conducted by the Magistrate.

Frequently asked questions

1. Can temporary insanity be used as defense?

When the defendant was insane during the commission of a crime but they later regained sanity aster the act. This can be used as a defense. It was first successfully used by US Congressman Daniel Sickles of New York.

2. What is the compensation for illegal detention of an insane person?

The Supreme Court extended the scope of Article 21 and awarded compensation for illegal detention of an accused of unsound mind for long span of 14 years after his acquittal.

3. Does Public Interest Litigation help even the accused person to be of unsound mind?

Yes, Public Interest Litigation was evolved by Supreme Court of India in S.P Gupta v. Union of India[vi]. In this case it liberalized the principles of locus standi. The strategy of Public Interest Litigation was opened for group representation of interests for the mentally ill to help the impairment of insane people agitate their own rights personally.


The procedure for accused to be insane person is elaborative and mostly mandatory in nature. The first step in safeguarding the insane persons is to check whether the accused is insane or not. The Magistrate or Court has to check the reason for his insanity with the help of a Medical Practitioner and the certificate provided by him is used as an evidence. The future of the person lies in the hands of the State Government. Once the person’s health has improved and if he is able defend himself then the proceedings may resume and be continued. The person should be kept in safe custody and provisions regarding that also is mentioned. Accused being unsound mind has to be hand over to his relative or a friend who wants to take care of them and they should ensure that he does not hurt himself or any other person.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje


[i] AIR 1972 SC 2267

[ii] 1992 CrLj 3835

[iii] (1928) 56 Cal 208

[iv] 1986 CrLj 1505

[v] (1971) 3 SCC 220

[vi] AIR 1982 SC 149

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