Section 368.   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 suffering from mental illness and consequently
incapable of making his defence, the Magistrate or Court shall, in the first instance, try the
fact of such mental illness 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.
(2) If during trial, the Magistrate or Court of Sessions finds the accused to be a
person with mental illness, 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
mental illness:
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.
(3) If the Magistrate or Court is informed that the person referred to in sub-section (2)
is a person with mental illness, the Magistrate or Court shall further determine whether the
mental illness 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 out against the accused, he or it shall, instead of postponing the
trial, discharge the accused and deal with him in the manner provided under section 369:

Provided that if the Magistrate or Court finds that a prima facie case is made out
against the accused in respect of whom a finding of mental illness is arrived at, he shall
postpone the trial for such period, as in the opinion of the psychiatrist or clinical
psychologist, is required for the treatment of the accused.
(4) If the Magistrate or Court finds that a prima facie case is made out against the
accused and he is incapable of entering defence by reason of mental illness, he or it shall
not hold the trial and order the accused to be dealt with in accordance with section 369.