The Code of Criminal Procedure, 1973, aims to provide a structure for a more efficient administration of justice and deals with the arrest and trial of the person. Fairness is crucial to determining when a person is lawfully deprived of their liberty; every person is entitled to a fair trial, including persons of unsound mind. A person is said to be of unsound mind if he or she is incapable of understanding things. A person can be either legally insane under Section 84 of IPC or medically insane. Considering such persons, special provisions are laid in Chapter XXV of CrPC regarding trial proceedings against them. These rules are appropriate for people with mental illnesses.

Trial Proceedings of an Unsound Person

The criminal procedures pertaining to a maniac or a person of unsound mind under CrPC are as follows:

  1. Procedure to follow if the accused is insane: In Trilok Singh v. State & Anr case[1], the petitioner counsel’s request for determination of condition of his client’s mind was not considered by the Additional Chief Judicial Magistrate. Later, the learned Judge in this revision petition quashed the order passed by stating that it is the court’s responsibility to establish a medical board or obtain a medical expert’s opinion regarding the petitioner’s unsoundness of mind to conduct further proceedings under Section 328[2].
  2. Procedure in the case of a person of unsound mind being tried in court: In Gordhan Lal v. State of Rajasthan case[3], Justice Shiv Kumar Sharma quashed the order passed by the Additional Sessions Judge against the accused. The accused was called from the Mental Hospital to hear his charge; this was against the rules outlined in Section 329[4], which states that if the accused appears to the court to be of unsound mind and incapable of making his defence, the court should first try the fact of such unsoundness and incapacity. If the court is satisfied after considering the medical and other evidence, it must record a finding to that effect and postpone further proceedings. In the given case, the case is reverted to the trial Judge, and the proceedings should be started again in compliance with Section 329.
  3. Release of the person of unsound mind pending investigation or trial: When the applicant lunatic moved the court and claimed to be insane, the court was required under Section 329 to conduct the proper inquiry. If the investigation reveals that the accused was insane, the court must issue an order pursuant to Section 330[5]. The earlier bail petition’s rejection would not be a reason to invoke Section 330. The accused can be released after obtaining the necessary security in accordance with Section 330 (1) or to act in accordance with Section 330 (2).[6]
  4. Resumption of inquiry or trial: Due to the lack of counsel in the Subhash Bhardwaj v. State case[7], the accused was not provided with the required legal representation. He was found guilty by the Sessions Court. Later, it was discovered that the appellant has negative syndrome psychosis, which the senior medical officer of the jail where he was being held affirmed. Because the accused received inadequate legal representation, Justice Gita Mittal overturned the Sessions Court’s decision and ordered a new trial. The defendant must be mentally competent for the retrial. Because the defendant in the case was not of sound mind at the time of the retrial, Justice Gita Mittal ruled that the accused may only be tried after receiving treatment and recovery under Section 331[8].
  5. The incapability of the accused to make his defence: In the State of Manipur v. Saikhom Ramo Singh case[9], the accused was convicted of his offence after getting treated for his unsoundness of mind. However, the learned Judge never considered whether the accused was capable of making his defence under Section 332[10]. Thus the order of conviction is set aside, and a new trial is ordered.
  6. When the accuser seems to be mentally competent: A person of sound mind capable of making his defence has to go through the proceedings under Section 333[11] for an offence he has committed when he is of unsound mind. Whether the accused can be acquitted or convicted is based on the medical reports of his unsoundness of mind.
  7. Acquittal ruling based on unsoundness of mind: Suppose a Judge finds sufficient evidence that the accused is of unsound mind at the time of the commission of the offence. In that case, the Judge may acquit the accused on the grounds of insanity under Section 334[12], which is observed in the Elkari Shankari v. State of Andhra Pradesh case[13].
  8. An Insane Person found not guilty to be held in protective custody: In the Kuttappan v. State of Kerala Case[14], the accused suffered from schizophrenic thought disorder at the time of the commission of the offence, which was proved with his medical records, so he was acquitted under Section 334. Then the court ordered to detain the accused in one of the mental hospitals in the State under Section 335.[15].
  9. Procedure when a lunatic prisoner is reported to be capable of defending himself: Sections 337[16] states that a lunatic prisoner can be allowed to make his defence provided that:
  • A prisoner detained in jail must get certified by the in-charge of the prison whom the state government empowers under Section 336[17] that the accused is capable of making a defence, or
  • A person detained in a lunatic asylum must get certified from two visitors of such asylum.
  1. When an imprisoned lunatic is deemed fit for release: A person, who is detained in safe custody after acquittal under Section 335, will be released subject to the conditions that a committee consisting of a judicial and two medical officers established by the state government under Section 338[18] should certify that the person is of sound mind which was observed in Leena Balkrishna Nair v. The State of Maharashtra case[19].
    • Delivery of lunatic to a relative or friend: A person who is a relative or friend of a lunatic accused can get the custody of such a person under Section 339[20] subject to the conditions:
  2. The Accused is detained under Section 330 or Section 335.
  3. An application for custody is to be given as prescribed under Section 335(c).


All the provisions we discussed in this article aim for a fair trial for persons of unsound mind, and they are based on the principles of natural justice. The procedures discussed in this article are established to ensure that the persons of unsound minds are not deprived of their chance to a fair trial and get the relief they deserve.

Author(s) Name: Boora Shiva (Osmania University, Hyderabad)


[1] Trilok Singh vs State of Rajasthan & Anr [2017] CRMP No. 1881 / 2017

[2] Criminal Procedure Code, 1973, s 328

[3] Gordhan Lal vs State Of Rajasthan (1963) RLW 2004 (4) Raj 2193, 2003 (1) WLC 266

[4] Criminal Procedure Code, 1973, s 329

[5] Criminal Procedure Code, 1973, s 330

[6] Sarfu Khan vs State of Jharkhand [2004] Criminal Appeal No. 1049/2004

[7] Subhash Bhardwaj vs State [2016] Crl. Appeal No.545/2016

[8] Criminal Procedure Code, 1973, s 331

[9] State Of Manipur vs Saikhom Ramo Singh [2003] 1 GLR 246

[10] Criminal Procedure Code, 1973, s 332

[11] Criminal Procedure Code, 1973, s 333

[12] Criminal Procedure Code, 1973, s 334

[13] Elkari Shankari vs State Of Andhra Pradesh (1989) 1990 CriLJ 97

[14] Kuttappan vs State of Kerala (1986) CriLJ 271

[15] Criminal Procedure Code, 1973, s 335

[16] Criminal Procedure Code, 1973, s 337

[17] Criminal Procedure Code, 1973, s 336

[18] Criminal Procedure Code, 1973, s 338

[19] Ms. Leena Balkrishna Nair Vs The State of Maharashtra [2010] CriLJ 3392

[20] Criminal Procedure Code, 1973, s 339