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Fitness claims in the courtroom in India

Read how Indian courts deal with a case of unfitness to stand trial.
© Project 39A at National Law University Delhi


Chapter 25 of the Code of Criminal Procedure (CrPC) deals with the procedure in cases where the accused is found to be of unsound mind. The chapter deals with two situations- where a person is of unsound mind or has an intellectual disability (referred to as mental retardation in the CrPC). The term ‘unsoundness of mind’ has not been defined in the section.

This inquiry is carried out by the Magistrate or the Sessions Court under ss 328 and 329 of the CrPC. The provisions deal with the defendant’s ability to participate in legal proceedings initiated against them. Where it appears that the accused may be of unsound mind, the court must inquire into the fact before proceeding with the trial. If found incapable of entering their defence, it must mandatorily postpone the trial until the person can be found fit to stand trial again.

Procedure to determine fitness to stand trial

This inquiry involves multiple steps –

  1. Evidence on record for the court to have a reason to believe that the accused may be of unsound mind/have an intellectual disability;
  2. Clinical inquiry must be undertaken to determine unsoundness of mind/intellectual disability; and
  3. Judicial determination to see if it interferes with the defendant’s ability to mount a defense.

Clinical Determination

The fact of unsoundness of mind/intellectual disability has to be examined by a medical officer, who has the further obligation of referring the accused to a psychiatrist/clinical psychologist. An assessment would involve looking at the psychiatric history (if any) and the details of the events leading up to the assessment in question. The provisions do not stipulate the time period within which the psychiatrist/clinical psychologist must submit their report to the court. Typically, the observation period may vary from anywhere between 1 week to 6 weeks.

Judicial determination

Once the court receives the report by the expert, the court must make a legal determination of whether the person by virtue of unsoundness of mind or intellectual disability, is incapable of entering the defence. Where the report comes back with a negative finding on unsoundness of mind/intellectual disability, the accused has the right to prefer an appeal against the finding of the expert (at the inquiry or the trial stage) to a medical board, the composition of which is provided for in ss. 328 and 329 of the CrPC. It is important to highlight that the section here does not imagine an expert report to be provided by a psychiatrist/psychologist on behalf of the defense. It is therefore important to get an expert opinion on the reports and examine the court appointed mental health expert on their findings.

Procedure after incompetence to stand trial has been established

Once an accused is determined unfit, the trial gets suspended until the accused is found fit to stand trial again. Two possibilities are imagined in s. 330 of the CrPC – either the accused is to be released to family/friends or they should be kept in such a place where regular psychiatric treatment can be provided.

Resumption of trial

The resumption of trial may be triggered by any of the following ways- subject to a periodic review or on submission of a fitness report to the court or on a fresh application by the prosecution/defense. There is a gap in the process not only in terms of tracking cases where an accused has been found unfit to stand trial, and there is also no guidance regarding the time period for which the trial can remain suspended where the accused is found unfit to stand trial.

© Project 39A at National Law University Delhi
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Forensic Mental Health and Criminal Justice

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