Chapter XXV
Section 328 CrPC: Procedure in case of accused being lunatic
New Law Update (2024)
Section 355 BNSS
TRIAL COURT
Magistrate's Court
Punishment
Procedural – Investigation / Inquiry
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is 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 officer as a witness and shall reduce the examination to writing.
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
(3) If such Magistrate is of opinion that the person referred to in Sub-Section (1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.
Important Sub-Sections Explained
Section 328(1) CrPC
This sub-section mandates that if a Magistrate suspects an accused is of unsound mind and unable to defend themselves during an inquiry, they must investigate this fact and arrange for the accused to be examined by a civil surgeon or other designated medical officer. The examination’s findings must be recorded.
Section 328(3) CrPC
If, after the inquiry and examination, the Magistrate concludes that the accused is indeed of unsound mind and incapable of making their defence, this sub-section requires the Magistrate to formally record this finding. Consequently, all further proceedings in the case must be postponed.
Landmark Judgements
Bapu v. State of Rajasthan (2007):
The Supreme Court clarified the mandatory nature of the Magistrate’s inquiry under Section 328 CrPC when there is a doubt about the accused’s mental condition. It held that the Magistrate must postpone proceedings after forming an opinion about the accused’s unsoundness of mind and incapacity to make a defence, further directing the procedure for medical examination and follow-up under Section 330.
Phool Chand v. State of Haryana (2014):
The Supreme Court reiterated the importance of a proper inquiry and medical examination to ascertain the accused’s mental state and capacity to defend themselves. The Court emphasized that a superficial assessment is insufficient, and the Magistrate must diligently follow the procedure laid down in Section 328, ensuring the accused’s right to a fair trial, even if they are of unsound mind.