Section 89 of IPC
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This article is written by Nipun Raj, a student of Amity Law School, Ranchi. The article explains the criminal proceedings related to person of unsound mind under The Code of Criminal Procedure, 1973.

This article has been published by Sneha Mahawar


The Code of Criminal Procedure, 1973 intends to give a mechanism for smoother delivery of justice. Since CrPC deals with the arrest and trial of the person, it is very necessary that fairness should be there to establish the lawful detainment of a person from his liberty.

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When a person is unable to understand things, he is said to be of unsound mind. Idiocy, madness, alcoholism, and mental degeneration are all examples of unsoundness. According to Section 84 of the Indian Penal Code, 1860, “Nothing constitutes an offence done by a person who, at the time of committing it, by reason of unsoundness of mind, is incapable of comprehending the nature of the conduct, or that he is doing what is either improper or contrary to law”.

In other words, an act committed by a person of unsound mind is not considered an offence and falls under the category of ‘General Exceptions’. Here, the caring attitude towards people who are mentally ill is maintained.

CrPC Chapter XXV Sections 328 to 339 makes provisions for accused persons of unsound mind. These provisions are in the best interests of the mentally ill.

Criminal proceedings related to unsound mind

The following are the criminal procedures related to a lunatic or an individual of unsound mind under CrPC – 

Section 328– procedure in case of the accused being a lunatic

According to Section 328 of the Act, if the magistrate believes that the person being investigated is unable to defend himself or is mentally ill, the magistrate must guarantee that the subject is evaluated by a medical professional during the investigation.

If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records.

The magistrate shall postpone the proceeding for a limited term until the person’s unsoundness is remedied, based on medical proof.

In the case of Mohan Lal @ Ranjan Mohan Bhatnagar vs The State (Nct Of Delhi) (2011), it was contended that the evidence on record shows that the appellant was examined by various doctors prior to the start of the trial by the learned Metropolitan Magistrate in proceedings under Section 328 CrPC and was found to be a man of unsound mind, and the learned M.M. also passed an order in this regard and the trial began only after he was declared mentally fit.

Section 329– procedure where a person of unsound mind is tried before the court

According to Section 329 of the Act, if the magistrate believes the person being tried is of sound mind and incapable of self-defence, the magistrate ensures this by having the subject evaluated by a medical professional. If the defendant is unable to defend himself, the magistrate will hear the prosecution and examine the records. The magistrate shall record such a determination and postpone the hearing based on medical evidence.

The fact of insanity throughout the trial will be considered part of the proceedings.

In the case of Kulwinder Singh v. State of Haryana (2011), it was stated that since Section 329 of CrPC relates to the trial of a person of unsound mind and that the application has been filed during the trial Section 329 of the Cr.P.C. would be applicable.

Section 330- release of a person of unsound mind pending investigation or trial

According to Section 330 of the Act, If the person is found unsound or incapable of making his defence during the inquiry and trial (Sections 328 and 329), regardless of whether the offence is bailable or not, the Court may release him. In other words, if the offence is non bailable, the magistrate must grant bail as well. If, on the other hand, bail cannot be granted, the accused must be kept in a location where he can receive treatment.

In the case of Kanhaiya v. State of U.P. (2018), the learned Additional Sessions Judge noted that a doctor at the mental hospital in Varanasi had opined that he was an accused of unsound mind, and ordered that the accused be sent under a detention warrant to the mental hospital in Varanasi, where the accused-applicant was being treated, as noted in his decision. He opined that there was no good reason to release the applicant on bail, and he denied the applicant’s bail application under Section 330 of the CrPC.

Section 331- resumption of inquiry or trial

According to Section 331 of the Act, when the inquiry and trial are postponed or suspended, the magistrate shall summon the person after he or she regains mental soundness or ceases to be insane and resume the inquiry and trial.

In the case of Subhash Bhardwaj v. State (2016), the Court concluded that the trial will be scheduled after the trial court receives the IHBAS report and completes its investigation pursuant to Section 331 CrPC.

Section 332- procedure of accused appearing before the magistrate or the court

According to Section 332 of the Act, If the accused appears before the magistrate and the court believes he is capable of presenting his defence, the investigation and trial will continue.

If the person is still unable to recover from his condition, the provisions of Section 330 will apply once more.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court said that the trial will continue as the accused is capable of presenting his defence.

Section 333- when accused appears to have been of sound mind

According to Section 333 of the Act, when the magistrate has reason to believe the individual is of sound mind and there is also evidence that acts were committed by the accused, when the act was committed by the accused, and when the act was committed while the accused was of sound mind. The magistrate will then proceed with the case.

In the case of Dimple @ Dimpu @ Gurcharan v. State of Punjab (2008), the court stated that the petitioner is opined to be suffering from that form of insanity at the time of the commission of the offence which may render him incapable of knowing the nature and quality of his act when he committed the same, so Section 333 comes into play.

Section 334- judgement of acquittal of the accused on the ground of unsoundness of mind

According to Section 334 of the Act, if a person is acquitted on the grounds of insanity and is unable to identify the nature of the act, the findings must state whether the act was committed by the accused or not. 

In the case of Abdul Latif v. The State of Assam (1981), the Court came to the conclusion that the accused was incompetent to know the nature of the act or that he was doing something that was either illegal or against the law at the critical moment. As a result, they overturned the convictions and punishments, accepted the plea of insanity, granted the appeal, and found the appellant not guilty.

Section 335- person acquitted on such ground to be detained in safe custody

According to Section 335 (1)  of the Act, if a person is acquitted by a magistrate on the grounds of insanity, he or she should be detained in safe custody or should be delivered to a family member or friend.

When it comes to delivering an accused person to a relative or friend, the court can only do so if the relative or friend makes an application to the magistrate and the friend or relative assures the court of security.

Responsibilities of a relative or friend

  • He must take proper care of that individual.
  • When necessary, the relative or friend should present that person for inspection as directed by the state government.

In the case of Niman Sha v. State of M.P. (1995), the Court decided, based on the heinous crime the accused had committed and his mental state, as well as the risks to society, that the accused be imprisoned at the mentioned Institute of Mental Health in Gwalior until he regains normalcy after receiving medical treatment.

Section 336- the power of state government to empower officer in charge to discharge

According to Section 336 of the Act, the State Government may delegate all or all of the functions of the Inspector-General of Prisons under Section 337 or Section 338 to the official in charge of the jail in which a person is imprisoned under the provisions of section 330 or section 335.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court ordered that a copy of the judgment shall also be sent to the Inspector General of Prisons who is empowered in terms of Section 336 to perform and discharge the functions under Sections 337 and 338 of Criminal Procedure Code for further necessary action in the matter.

Section 337- procedure where the lunatic prisoner is reported capable of making his defence

According to Section 337 of the Act, the magistrate must proceed with Section 332 if it is determined that the lunatic is now capable of defending himself. 

In the case of Emperor v. Motilal Hiralal (1921), the Court continued the trial as the accused is capable of defending himself.

Section 338- procedure where a lunatic detained is declared fit to be released

According to Section 338 of the Act, if a person is detained under Section 330 on the grounds of insanity and the authorised person or inspector general certifies that the person is fit to be released, detained by the authorities, transferred to a public mental institution then there should be no damage in doing so and the government may then release the individual.

If a person is committed to a public mental institution, a commission must be formed to conduct an official investigation into their mental health and issue a report, which must be sent to the state government.

In the case of Motiram Maroti Dhule v. State of Maharashtra (2002), the Court has directed that the petitioner be kept in safe custody for the present in Amravati Jail till the State Government takes action in the matter. The State Government may decide where the appellant is to be kept pending action under Sections 338 or 339 of Criminal Procedure Code as the case may require.

Section 339- delivery of lunatic to the care of relative or friend

According to Section 339 of the Act, if a person’s relative or friend wishes for the person to be released to him, the relative or friend must apply to the State Government for such a release.

The State Government will only accept such an application or grant the request if the person delivers :-

  • Properly cared for without causing harm to himself or others 
  • Produced for inspection when necessary
  • Produced before a magistrate when necessary

When the accused is able to defend himself, the accused’s relative or friend is summoned, and a certificate of inspection is kept as evidence.

In the case of Geeg Singh v. State of Rajasthan (2008), the Court has said that as per Sections 338(1) and 339(1), CrPC, the State Government may make suitable directions to deliver the appellant to any of his relatives or friends when he is fit.

Notable case laws related to person of unsound mind

State of Maharashtra  v. Sindhi (1975)

In this case, the Court held that the accused could not be declared to be incapable of defending himself because he was fully aware of the nature of the crime he had committed and the proceedings against him. The specialist has been called to ensure mental insanity. The High Court carefully considered their testimony before recording its own conclusions on the key issues.

I.V. Shivaswamy v. State of Mysore (1971)

In this case, the Court ruled that the investigation will be conducted only if the magistrate is satisfied that the accused is insane or of unsound mind. However, if there is no possibility of unsoundness, such an investigation will not take place. In the event of a doubt, an investigation is required.


It can be concluded that such provisions are in the best interests of those who are mentally ill and incapable of self-defence. During the period of his insanity, the magistrate has the authority to postpone the trial or procedures.

After he has recovered his health or is capable of defending himself, the court will proceed as if he is of sound mind. Such a person must be maintained in a secure environment or in safe custody. A relative or acquaintance of that person may file a petition to the magistrate for release if that person is mentally ill. We can see the court’s concern for the mentally ill in this case. Such provisions are required to achieve proper justice.



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