Section - 328 & 329 - Provisions as to Accused Persons of Unsound Mind

328. Procedure in case of accused being lunatic.—(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.
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[(1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist
or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical
psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of
mind or mental retardation:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as
the case may be, 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 medical college.]
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the
provisions of section 330.
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[(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind,
the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering
defence and 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 enquiry, discharge the accused and deal with him in the manner provided under
section 330:
Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom
a finding of unsoundness of mind 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 330.
(4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental
retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of
entering defence, and 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 330.]
329. Procedure in case of person of unsound mind tried before Court.—(1) If at the trial of any person
before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind
and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of
such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence
as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall
postpone further proceedings in the case.
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[(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall
refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical
psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from
unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as
the case may be, 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 medical college.]
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[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused
incapable of entering defence and if the accused is found so incapable, the Magistrate or Court 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 the Magistrate or Court finds that no prima facie case is made.