State the procedure to be adopted when the accused is a lunatic (of unsound mind).

Question: State the procedure to be adopted when the accused is a lunatic (of unsound mind).

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Answer

Chapter 25 of the Code of Criminal Procedure deals with the accused persons of unsound mind. The chapter starts with Section 328 and ends with Section 339. An accused person in a layman’s language is any person who is presumed to be charged with some offence, or against whom any claim of committing an offence is made. An unsound person is a person who is lunatic or otherwise insane.

Procedure in case of accused being lunatic – Section 328

The section says that when a Magistrate is conducting an inquiry and he has reasons to believe that the person against whom the inquiry is initiated is of unsound mind and consequently incapable of making his defense, 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 any such medical officer as the state government may direct, he shall then examine such surgeon or medical officer whatever the case may be as a witness and shall reduce the examination in writing.

Clause [(1A) was inserted by Act 5 of 2009, Section 328[(1A)]: According to this clause if a civil surgeon or a medical officer finds the accused to be of unsound mind he shall refer such person to a psychiatrist or clinical psychologist and he shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation. This clause comes with a proviso which lays down:

Provided that if the accused is aggrieved by the information which is given by the psychiatrist or clinical psychologist, as the case may be to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of :

1. 1. head of the psychiatry unit in the nearest government hospital.
   2. a faculty member in psychiatry in the nearest Medical college.

Clause 2 of the said Section provides that pending such inquiry and examination the Magistrate may deal with the accused person in accordance with Section 330.

Clause 3 added by Act 5 of 2009, Section 328(3) says that if the Magistrate is informed that the person referred to in sub-section (1A) is of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of defending himself if the Magistrate believes that the accused is incapable of defending himself, he shall record a finding to that effect and shall examine the record of evidence produced by the prosecution, the Magistrate has to question the advocate and not the accused, if he finds out that no prima facie case is made out against the accused, he shall discharge the accused instead of postponing the enquiry and shall deal with him in a manner provided under Section 330.

Where the Magistrate finds out that a prima facie case is made out against the accused person, he shall postpone the proceedings till such a time period as in the opinion of the psychiatrist or psychologist is required for the treatment of the accused.

Subsection 4 of the section provides that if the Magistrate is informed that the accused person is suffering from mental retardation, he shall further determine whether the mental retardation renders the accused person incapable of defending himself, if the accused is found incapable, the Magistrate shall order the closure of inquiry and deal with the accused as provided under Section 330.

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