Bombay HC: Procedure to be followed by Court if accused is suffering from mental illness.

 In terms of sub-section (2) of Section 330 of the

Code of Criminal Procedure, if the case is one in which, in the

opinion of the Magistrate or Court, as the case may be, the

bail cannot be granted, it shall order the said accused to be

kept in such a place where regular psychiatric treatment can

be provided and shall report the action taken to the State

Government.{Para 12}

13. In terms of sub-section (1) of Section 103 of the

Mental Healthcare Act, 2017, if any order is passed under

Section 330 of the Code of Criminal Procedure directing

admission of the prisoner with mental illness into any

suitable mental health establishment, shall be suffcient

authority for the admission of such person in such

establishment to which such person may be lawfully

transferred for care and treatment therein. The learned A.P.P.

has suggested that the applicant may be referred to the

Regional Mental Hospital, Yerwada, Pune for admission, care

and further treatment.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

901 BAIL APPLICATION NO.1426 OF 2020

Shankar Sopan Shikare Vs  The State of Maharashtra

CORAM : V.K. JADHAV, J.

DATE : 10.12.2020

1. The applicant is seeking regular bail in connection

with Crime No. 110 of 2019 registered with Jamkhed Police

Station, District Ahmednagar for the offence punishable

under Section 302 of the Indian Penal Code. His Criminal

Bail Application No. 250 of 2019 with similar prayer came to

be rejected by the learned Additional Sessions Judge,

Shrigonda , District Ahmednagar vide order dated 12.10.2020.

2. I have heard learned Counsel Mr. Karpe at length.

Learned Counsel Mr.Karpe for the applicant submits that the

applicant came to be arrested in connection with the present

crime on 09.03.2019. The applicant was initially granted

Police Custody Remand and on 10.03.2019 he was remanded

to Magisterial Custody. Learned Counsel submits that since

then the applicant is languished in Sub District Jail,

Jamkhed. Learned Counsel submits that during the course

of the investigation, statement of the applicant / accused

came to be recorded. Applicant has given the said statement

in such a manner which apparently indicates that the

applicant is suffering from mental illness. The applicant,

who is 26 years of age, by giving reference to the suicidal

death of his grandfather when the applicant was in 10th

Standard, blamed the deceased who happened to be Pujari.

According to the applicant / accused, the deceased used to

play black magic and as a result thereof, the applicant

himself was suffering many health problems such as

headache, pains in abdomen, etc. The applicant is also

having an intense feeling that his grandfather died because of

the black magic played by the deceased. The applicant /

accused has further explained that after killing the deceased

he has tried to cut the vein of his left wrist. He is not willing

to stay alive. Learned Counsel submits that neither the Police

Offcer nor Assistant Superintendent of Jail, Sub- District

Jamkhed, so also the learned Magistrate before whom the

applicant was produced, had taken care to refer the applicant

for his medical examination.

3. Learned Counsel submits that the learned

Additional Sessions Judge, Shrigonda however sent the

applicant for his medical examination to Sasoon Hospital,

Pune before deciding the bail application below Exh.19 in

Special Case No. 250 of 2019. In turn, the Sasoon Hospital

has referred the applicant to Psychiatric Department of B.J.

Government Medical College and Hospital, Pune. The

Assistant Professor Dr. Ananya Dhar by letter dated

31.10.2020 reported to the Medical Superintendent of Sasoon

Hospital, Pune that the applicant is of unsound mind and

consequently incapable of making his defence. It has also

reported that the applicant needs to be admitted as an indoor

patient in the hospital for his further treatment. Thereafter

the Medical Superintendent, Sasoon Hospital, Pune has

submitted the report to the Additional Sessions Judge,

Shrigonda by letter dated 31.10.2020 alongwith the report

submitted by Dr. Ananya Dhar, Assistant Professor,

Psychiatric Department of B.J. Government Medical College

and Hospital, Pune.

4. Learned Counsel for the applicant submits that by

order dated 12.11.2020 Additional Sessions Judge, Shrigonda

by recording all these factual aspects in para-7, merely

rejected the application. Learned Additional Sessions Judge

has simply observed that though the relatives fled

undertaking, the applicant / accused cannot be released on

bail since he requires medical treatment as an indoor patient.

Learned Counsel submits that the Additional Sessions Judge

has ignored the provisions of the Mental Healthcare Act, 2017

and simply rejected the application of the applicant seeking

bail. Learned Counsel submits that it is also shocking that

even after receipt of the report from B.J. Government Medical

College and Hospital, Pune with covering letter of the Medical

Superintendent of Sasoon Hospital, Pune, the learned

Sessions Judge has not bothered to appoint any nominated

representative neither provided the applicant free legal aid

which is his right in terms of the provisions of Section 27 of

the Mental Healthcare Act, 2017. Learned Counsel submits

that by taking into consideration the provisions of Mental

Healthcare Act, 2017 read with Section 330 of the Code of

Criminal Procedure, necessary orders may kindly be passed.

5. Learned A.P.P. Shri Shinde has accepted that the

courts below have ignored the provisions of Mental Healthcare

Act 2017 and even the Assistant Superintendent of Sub-

District Jail, Jamkhed has also not bothered to submit

application suo-moto before the Magistrate when the

applicant / accused was kept in jail. Learned A.P.P. submits

that obviously since it is Sub-District Jail at Jamkhed, there

are no facilities like separate cell for mentally ill patients.

Learned A.P.P., on instructions, submits that even in the city

like Aurangabad there are no such facilities available in

Central Jail, Aurangabad, so also in Government Medical

College and Hospital, Aurangabad. Learned A.P.P., however,

submits that there is a General Ward for treatment of such

patients in the said hospital. Learned A.P.P. submits that the

court below should have taken care to refer the applicant to

any suitable mental health establishment. Learned A.P.P.

submits that the applicant has injury on his left wrist and he

is likely to cause harm to himself so also to the other persons.

In view of the same, though the learned Additional Sessions

Judge has not taken into consideration the undertaking and

rejected the application for bail, however, in terms of the

provisions of Section 103 of the Mental Healthcare Act, 2017,

the learned Additional Sessions Judge, who is a trial Judge,

should have referred the applicant to any suitable mental

health establishment. Learned A.P.P. fairly submits that the

necessary orders may be passed taking into consideration the

welfare and aspect of the further treatment to be given to the

applicant.

6. It has also brought to my notice by the learned

Counsel for the applicant so also the learned A.P.P. that in

terms of the provisions of Section 121 of the Mental

Healthcare Act, 2017 the State Government yet to frame

Rules. Learned A.P.P., however, submits that the State

Government has prepared draft of the Rules and the same

has been sent for approval. It is to be noted here that new

Mental Healthcare Act, 2017 came to be enacted w.e.f.

07.07.2018 by repealing the earlier Acts and even in the year

2020 Rules are yet not framed.

7. It is a sordid state-of-affairs that the police

machinery, the jail authorities and even the courts below

have ignored the provisions of the Mental Healthcare Act,

2017. As per the statement of objects and reasons of Mental

Healthcare Act, 2017, new legislation came to be enacted by

repealing the earlier Act by recognizing that the persons with

mental illness constitute a vulnerable section of society and

are subject to discrimination in our society. Further the

families bear fnancial hardship, emotional and social burden

of providing treatment and care for their relatives with mental

illness.

8. In the instant case the learned Assistant Sessions

Judge, Shrigonda has merely rejected the application of the

applicant seeking bail. Though the learned Additional

Sessions Judge has received the report from B.J. Medical

College and Hospital, Pune forwarded by the Medical

Superintendent of Sasoon Hospital, Pune about unsoundness

of mind of the applicant and his incapacity of making his

defence, has failed to appoint the nominated representative.

9. It is clear from the report submitted by B.J.

Government Medical College and Hospital, Pune that that the

applicant requires treatment as an indoor patient. It further

appears from the statement of the applicant recorded during

the course of investigation that the applicant may cause harm

to himself and his very presence in the society at present may

be dangerous unless requisite treatment is offered and given

to him.

10. In view of the same, this Court left with no other

option but to invoke the provisions of the Mental Healthcare

Act, 2017 and to pass the appropriate order.

11. Section 103 of the Mental Healthcare Act, 2017 is

reproduced herein below :

“103. Prisoners with mental illness - (1) An

order under section 30 of the Prisoners Act, 1900 or

under section 144 of the Air Force Act, 1950, or

under section 145 of the Army Act, 1950, or under

section 143 or section 144 of the Navy Act, 1957, or

under section 330 or section 335 of the Code of

Criminal Procedure, 1973, directing the admission

of a prisoner with mental illness into any suitable

mental health establishment, shall be suffcient

authority for the admission of such person in such

establishment to which such person may be

lawfully transferred for care and treatment therein:

Provided that transfer of a prisoner with mental

illness to the psychiatric ward in the medical wing

of the prison shall be suffcient to meet the

requirements under this section:

Provided further that where there is no provision for

a psychiatric ward in the medical wing, the prisoner

may be transferred to a mental health

establishment with prior permission of the Board.

(2) The method, modalities and procedure by

which the transfer of a prisoner under this section

is to be effected shall be such as may be prescribed.

(3) The medical offcer of a prison or jail shall

send a quarterly report to the concerned Board

certifying therein that there are no prisoners with

mental illness in the prison or jail.

(4) The Board may visit the prison or jail and ask

the medical offcer as to why the prisoner with

mental illness, if any, has been kept in the prison or

jail and not transferred for treatment to a mental

health establishment.

(5) The medical offcer in-charge of a mental

health establishment wherein any person referred

to in sub-section (1) is detained, shall once in every

six months, make a special report regarding the

mental and physical condition of such person to the

authority under whose order such person is

detained

(6) The appropriate Government shall setup

mental health establishment in the medical wing of

at least one prison in each State and Union

territory and prisoners with mental illness may

ordinarily be referred to and cared for in the said

mental health establishment.

(7) The mental health establishment setup under

sub-section (5) shall be registered under this Act

with the Central or State Mental Health Authority,

as the case may be, and shall conform to such

standards and procedures as may be prescribed”.

12. In terms of sub-section (2) of Section 330 of the

Code of Criminal Procedure, if the case is one in which, in the

opinion of the Magistrate or Court, as the case may be, the

bail cannot be granted, it shall order the said accused to be

kept in such a place where regular psychiatric treatment can

be provided and shall report the action taken to the State

Government.

13. In terms of sub-section (1) of Section 103 of the

Mental Healthcare Act, 2017, if any order is passed under

Section 330 of the Code of Criminal Procedure directing

admission of the prisoner with mental illness into any

suitable mental health establishment, shall be suffcient

authority for the admission of such person in such

establishment to which such person may be lawfully

transferred for care and treatment therein. The learned A.P.P.

has suggested that the applicant may be referred to the

Regional Mental Hospital, Yerwada, Pune for admission, care

and further treatment.

14. In view of the same, the following order is passed

which would meet the ends of justice. It is to be mentioned

here that the learned Counsel Mr.Karpe on his own has made

a statement that he would not charge the fees to the applicant

for pursuing his application before this Court and he would

be offering his services to the applicant free of charge. Hence,

the following order.

ORDER

I. In terms of the provisions of sub-section (1)

of Section 103 of the Mental Healthcare Act,

2017 read with Section 330 of the Code of

Criminal Procedure, 1973, it is hereby

directed that the applicant / accused

Shankar Sopan Shikare in connection with

Crime No. 110 of 2019 registered with

Jamkhed Police Station for the offence

punishable under Section 302 of the Indian

Penal Code, shall be admitted in the

Regional Mental Hospital, Yerwada, Pune

from Sub-District Jail, Jamkhed at the

expenses of the State forthwith, for his care

and treatment therein. This order shall be

suffcient authority for admission of the

applicant Shankar Sopan Shikare in the

Regional Mental Hospital, Yerwada, Pune.

II. In terms of the provisions of sub-section (5)

of Section 103 of the Mental Healthcare Act,

2017, the Superintendent or In-charge person

of Regional Mental Hospital, Yerwada, Pune

shall submit a special report regarding

mental and physical condition of the

applicant to the learned Additional Sessions

Judge, Shrigonda, once in a six months.

III. The learned Additional Sessions Judge,

Shrigonda shall pass appropriate order

providing free legal aid to the applicant.

IV. At present, as temporary adjustment, father of

the applicant namely Sopan Namdeo Shikare

is hereby appointed as nominated

representative of the applicant and the

applicant’s family is at liberty to fle an

application for revocation of the said

nominated representative, if so desired.

V. In terms of provisions of sub-section (5) of

Section 103 of the Mental Healthcare Act,

2017, if the report is submitted by the

Superintendent or In-charge of Regional

Mental Hospital, Yerwada, Pune, the learned

Additional Sessions Judge shall review the

position and pass appropriate orders in terms

of the provisions of Section 328 or Section 329

and Section 330 (1) of the Code of Criminal

Procedure, as the case may be. Further,

depending upon such report as provided under

sub-section (5) of Section 103 of the Mental

Healthcare Act, 2017, the applicant either

himself or his nominated representative is at

liberty to fle an application for bail before the

trial Court and upon fling such application for

bail, it is for the trial Court to consider the

same on its own merits.

VI. The learned Additional Sessions Judge,

Shrigonda shall immediately report the

directions as aforesaid to the State of

Maharashtra in terms of the provisions of subsection

(2) of Section 330 of the Code of

Criminal Procedure.

VII. Learned A.P.P. to ensure the compliance of the

directions about immediate transfer of the

applicant from Sub-District Jail, Jamkhed to

Regional Mental Hospital, Yerwada, Pune and

submit the copies of the correspondence so

made to the Registrar (Judicial) of this Court.

15. Authenticated copy be supplied to learned A.P.P.

16. Application is accordingly disposed of.

(V.K. JADHAV, J.)

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