Wednesday, 6 July 2016

Procedure to be followed by court when accused has raised plea of unsoundness of mind

 Needless to state that enquiry under Section 329 of the
Code of Criminal Procedure is treated as part of trial.  Section 329 of
the Code of Criminal Procedure provides that when Trial Court is of
the view that Accused is a man of unsound mind and consequently

incapable of making his defence, after considering the medical report
in this regard, he should postpone further proceeding of case and trial
will start as soon as he is found to be capable of making his defence.
It is mandatory that when plea of unsoundness of mind is raised
before the Court it shall try the fact of unsoundness of mind and
incapacity of Accused at the first instance.  
12 Section   329   of   the   Code   of   Criminal   Procedure
contemplates two stages of procedure.  First stage lays down that it
must   appear   to   the   Judge   that   Accused   placed   on   trial   was   of
unsound mind and incapable of making his defence.  Next stage that
has to follow when it appears to Judge that Accused was of unsound
mind and consequently incapable of making his defence, is that the
fact of such unsoundness of mind and incapacity has to be enquired
into on the basis of material placed before the Court.  The decision in
this regard cannot be based merely on the information received from
doctors, but it must be based on evidence and the entire material
brought forth before the Court.

THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO. 1398 OF 2016
Firoza Fazal Shaikh,

V E R S U S
The State of Maharashtra,

CORAM  : INDIRA K. JAIN, J.
DATE      : 22nd April, 2016.

Citation: 2016 ALLMR(CRI)2172

2 By   this   application,   Applicant   /   original   Accused
challenges the order dated 25th February, 2016 passed by the learned
Additional Sessions Judge, Aurangabad below Exhibit 1 in Sessions
Case No.300 of 2013.
3 Heard at length Mr. R. S. Deshmukh, learned counsel for
Applicant and Mr. S. D. Ghayal, learned APP for State.
4 Facts giving rise to present application may be stated in
nutshell as under:
i. PSO Begumpura Police Station, Aurangabad filed
charge­sheet in Crime No.I­34 of 2013 against the
Applicant   for   the   offences   punishable   under
Sections   302   of   201   of   the   Indian   penal   Code.
Applicant is an under trial prisoner.  Sessions Case
No.300 of 2013 arising out of said crime is pending
before   the   learned   Additional   Sessions   Judge,
Aurangabad.
ii. On   9th  May,   2013   Accused   was   arrested.     He
moved an application Exhibit 7 under Section 330

of the Code of Criminal Procedure for his release
on bail.   It was rejected on 29th  May, 2014.   The
order   of   rejection   of   application   was   challenged
before this Court in Criminal Application No.6050
of 2014.  By the order dated 19th December, 2012
(Coram : T. V. Nalawade, J.), the order passed
below   Exhibit   7   was   set   aside   and   matter   was
remanded to Trial Court for following the procedure
laid down in Chapter XXV of the Code of Criminal
Procedure.     On   remand   Trial   Court   conducted
enquiry afresh and vide impugned order rejected
the plea raised by Accused that he is a person of
unsound   mind   and   consequently   incapable   of
making his defence.   Being aggrieved Applicant
has   challenged   the   said   order   in   present
application.
5 In his extensive arguments learned counsel for Applicant
vehemently contended that Applicant was examined by experts at
Mental Hospital, Yerwada.  Reports dated 19th June, 2015, 25th July,
2015 and 27th August, 2015 persistently suggest that Applicant is of

unsound mind and needs long terms indoor treatment.  It is submitted
that report dated 27th August, 2015 also indicates that patient would
also require family support and such environment which would be
helpful for his speedy recovery.  Learned counsel submits that on 4th
February, 2016 Mental Hospital, Pune surprisingly issued a report
showing that Accused is fit for trial and based on this report Trial
Court came to the conclusion that Accused was not of unsound mind
and not incapable to make his defence.  Learned counsel submitted
that number of reports in favour of Applicant would speak otherwise
and the impugned order therefore needs to be set aside.
6 Per   contra   learned   APP   strongly   supports   the   order
passed by the Trial Court under Section 329 of the Code of Criminal
Procedure.  Learned APP submitted that report Exhibit 54 issued by
Dr. Donglikar clearly shows that Accused is fit for trial and so Trial
Court has rightly negatived the plea raised by Applicant.
7 Mr. S. S. Ladda, learned counsel for Complainant is also
heard.  Learned counsel submitted that Accused is involved in series
of offences and he never raised plea of unsoundness of mind in either
of   the   cases.     Learned   counsel   for   Complainant   contended   that

number of documents were available on record before the Trial Court
which would show that Accused was not a person of unsound mind
but the plea of unsoundness of mind has been purposely raised to
frustrate the trial and to anyhow get released on bail since all the
efforts   of   Accused   to   get   himself   enlarged   on   bail   have   failed.
Learned counsel submits that Trial Court has rightly negatived the
plea of unsoundness of mind and no interference is warranted in this
application. 
8 On perusal of report dated 19th June, 2015 submitted by
Superintendent   Regional   Mental   Hospital,   Yerwada,   Pune   to   the
Sessions   Court,   Aurangabad   it   can   be   seen   that   mental   status
examination of patient was conducted and doctor opined that patient
was   showing   some   improvement   in   psychiatric   symptoms   and   he
needs further long term indoor management.   Another report dated
23rd July, 2015 is on the same line.  In third report dated 27th August,
2015 impression recorded by doctor is “at present patient is missing
his relatives and feeling lonely.  He is on above said medicines.  He
will require long term treatment as well as family support/environment
would be helpful for his speech recovery.”

9 Next report is dated 16th November, 2015.  It shows that
patient   showing   improvement   needs   long   term   management.
Presently he is not fit for trial.  One more report dated 19th December,
2015 is by Visitors Committee consisting of Chief Judicial Magistrate,
Pune, Superintendent Regional Mental Hospital, Yerwada, Pune and
Deputy Superintendent Regional Mental Hospital, Pune.  This report
indicates that patient was of unsound mind and unfit for trial.
10 It   is   also   evident   that   after   the   matter   was   remanded
prosecution moved an application calling an expert as a witness.  Trial
Court issued summons to Medical Superintendent, Regional Mental
Hospital,   Yerwada,   Pune   and   examined   Dr.   Bhalchandra   s/o.
Manikrao   Donglikar   as   Court   Witness   No.1.     In   his   evidence   Dr.
Donglikar stated that Dr. Gosavi was the treating doctor of Accused.
He was regularly attending the patient.  Dr. Gosavi was not examined
in the course of enquiry.
11 Needless to state that enquiry under Section 329 of the
Code of Criminal Procedure is treated as part of trial.  Section 329 of
the Code of Criminal Procedure provides that when Trial Court is of
the view that Accused is a man of unsound mind and consequently

incapable of making his defence, after considering the medical report
in this regard, he should postpone further proceeding of case and trial
will start as soon as he is found to be capable of making his defence.
It is mandatory that when plea of unsoundness of mind is raised
before the Court it shall try the fact of unsoundness of mind and
incapacity of Accused at the first instance.  
12 Section   329   of   the   Code   of   Criminal   Procedure
contemplates two stages of procedure.  First stage lays down that it
must   appear   to   the   Judge   that   Accused   placed   on   trial   was   of
unsound mind and incapable of making his defence.  Next stage that
has to follow when it appears to Judge that Accused was of unsound
mind and consequently incapable of making his defence, is that the
fact of such unsoundness of mind and incapacity has to be enquired
into on the basis of material placed before the Court.  The decision in
this regard cannot be based merely on the information received from
doctors, but it must be based on evidence and the entire material
brought forth before the Court.
13 In the present case it is apparent from the impugned order
that Trial Court has not considered number of reports by experts,

voluminous   documents   containing   168   pages   produced   by
Dr.Donglikar and did not examine competent witnesses in course of
enquiry.  In this premise enquiry cannot be said to be complete in all
respects under Section 329 of the Code of Criminal Procedure and
the   order   passed   ignoring   the   relevant   material   on   record   is
unsustainable in law.  Hence the following order – 
O R D E R
I. Criminal Application No.1398 of 2016 is allowed.
II. Impugned order dated 25th February, 2016 passed
below Exhibit 1 by the learned Additional Sessions
Judge, Aurangabad in Sessions Case No.300 of
2013, is set aside. 
III. Matter   is   remanded   to   the   Trial   Court   with   a
direction to enquire into the plea of unsoundness of
mind and consequently his incapacity to make his
defence,   as   raised   by   the   Accused,   afresh   in
accordance with the law.

IV. While   recording   finding   on   the   plea   raised   by
Accused  Trial  Court is expected  to consider the
entire material and evidence on record.
V. Trial Court shall complete the enquiry as early as
possible and in any case within three months.
VI. Rule is made absolute in above terms.
[ INDIRA K. JAIN, J. ] 

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