Section 329 addresses incapacity to defend at trial, not insanity at the time of the offence.

The petitioner was facing trial for an offence under Section 326B of the Indian Penal Code, 1860.

After the prosecution evidence had concluded, he applied under Section 329 CrPC for constitution of an Expert Medical Board, relying on his alleged psychiatric condition and its possible effect on his mental capacity when the offence was committed. The Sessions Court dismissed the application. The petitioner challenged that order under Section 528 BNSS.

The documents relied on were dated after the alleged offence; the Sessions Court also recorded that its interaction with the petitioner disclosed no apparent unsoundness of mind.

Whether an application under Section 329 CrPC is maintainable when made after the prosecution evidence has concluded and the defence stage has been reached.

Whether the materials before the Trial Court provided a sufficient basis to require a medical-board inquiry into the petitioner’s unsoundness of mind and consequent incapacity to make his defence.

Whether the petitioner’s claim about his mental capacity at the time of the alleged offence fell within Section 329 CrPC or instead concerned the defence under Section 84 IPC.

Section 84 IPC concerns whether, at the time of the act, unsoundness of mind rendered the accused incapable of knowing the nature of the act or that it was wrong or contrary to law. Section 329 CrPC concerns unsoundness of mind during trial that makes the accused incapable of making or entering a defence.

As explained in Inderjit Singh v. Central Bureau of Investigation, 2024 SCC OnLine Del 2931, Sections 329(1) and 329(2) operate at different stages, and the latter applies after the prosecution evidence has closed and the defence stage has been reached.

The stage at which an application is made does not, by itself, make it untenable; however, an assertion of unsoundness alone does not require a medical-board inquiry—the circumstances must provide a sufficient basis to inquire into unsoundness and consequent incapacity.

Kamal Bhardwaj v. State, 2016 SCC OnLine Del 4315, supports referral for psychiatric opinion where prima facie material indicates mental impairment.

The Court held that the petitioner’s application was not barred merely because it was filed after the prosecution evidence had concluded. However, its principal focus on the petitioner’s mental capacity at the time of the alleged offence concerned Section 84 IPC, rather than the trial-stage incapacity addressed by Section 329 CrPC.

The documents were created after the offence and did not indicate that the petitioner suffered from unsoundness of mind; the Sessions Court’s interaction with him likewise disclosed no such condition.

Accordingly, the prima facie material contemplated in Kamal Bhardwaj was absent.