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, Vs 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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