Kerala HC: BNSS Gives Wider Protection To Accused Of Unsound Mind Or Intellectual Disability, Will Apply Retrospectively

 Following the principles enunciated above, all applications filed and steps taken in a pending proceeding prior to 1.7.2024 shall be under the provisions of the Code of Criminal Procedure, 1973. As I discussed above, Chapter XXVII of the Sanhita has given wider protection to a person of unsound mind or a person suffering from intellectual disability. Where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused. Issue No.2 is answered as above. {Para 29}

The present case

30. Annexure A3 report reveals that the petitioner is suffering from severe dementia, and the chances of recovery are less. The petitioner is aged 74 years. The report states that the petitioner's soundness of mind is to be assessed in detail by a psychiatrist. The learned Special Judge has taken the stand that if the party requires it, he should be subjected to an examination by a psychiatrist. The learned Special Judge lost sight of the principle that he has an onerous responsibility to try the issue as to whether the petitioner has any mental disability. The order impugned is patently illegal and irregular. The impugned order, therefore, stands set aside. The learned Special Judge shall reconsider the application and proceed under Chapter XXVII of the Sanhita.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. MC No. 6370 of 2023

Decided On: 05.09.2024

V.I. Thankappan Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K. Babu, J.

Citation: MANU/KE/3656/2024,2024:KER:67342

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Shifting the Paradigm: How BNSS 2023 Transforms Criminal Procedure for Accused Persons of Unsound Mind

 The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaces select portions of the Code of Criminal Procedure (CrPC) 1973 and, in doing so, rewrites India’s response to accused persons whose mental condition prevents them from mounting a defence. The reform moves beyond outdated language and narrow categories, extends wider substantive protection, and tightens procedural safeguards.

1. Structural Re-location of the Law

CrPC housed the rules in Chapter XXV, Sections 328 – 339. BNSS mirrors this structure in Chapter XXVII, Sections 367 – 378, ensuring continuity for practitioners while signalling a fresh policy outlook.

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Whether the court dealing with a person of unsound mind U/S 84 of IPC can adopt an accused-friendly approach provided under Chapter 25 of CRPC?

CHAPTER XXV OF THE CODE OF CRIMINAL PROCEDURE 1973

15. Chapter XXV of the Code of Criminal Procedure 1973 (hereinafter 'Cr.P.C.'), though procedural in nature, also becomes substantive when it deals with an Accused person of unsound mind. A well-laid procedure is contemplated Under Sections 328 to 339 of Code of Criminal Procedure. There is not even a need for an application Under Section 329 of Code of Criminal Procedure in finding out as to whether an Accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court. Under Section 330, the Court can even go to the extent of discharging such a person if his inability to stand trial continues with a rigid chance of improvement. As per Section 334 of Code of Criminal Procedure, the judgment of the Court shall include a specific finding that the act was committed due to unsoundness of mind, though it was actually done. The reason is simple as there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done.

16. The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice.

17. Having noted the scope and ambit of Chapter XXV of Code of Criminal Procedure, including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the Court has a larger role to play while considering the case Under Section 84 of the Indian Penal Code. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the Court to even discharge an Accused on the ground of an unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 of the Indian Penal Code.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2010 of 2010

Decided On: 12.01.2023

Prakash Nayi  Vs.  State of Goa

Hon'ble Judges/Coram:

B.R. Gavai and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Citation: MANU/SC/0269/2023.

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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

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Madras HC: Precaution to be taken by the magistrate before committal of accused of unsound mind to session court

While so, the police completed the investigation and filed a final

report in P.R.C.No.15 of 2017 against Kaliyappan for the offence under

Section 302 IPC before the District Munsif-cum-Judicial Magistrate, Omalur.

Surprisingly, the Magistrate commenced the proceedings under Sections 207

and 209 Cr.P.C. and committed the case to the Court of Session, by order

dated 03.03.2008 in P.R.C. No.15 of 2007. Even during the committal

proceedings, the Magistrate did not take any steps to satisfy himself as to

whether Kaliyappan was in a sound state of mind to understand the proceedings.

20. A close reading of Section 328 Cr.P.C. shows that it deals with

(a) persons of unsound mind and (b) persons suffering from mental retardation at the stage of an inquiry. The expression “inquiry” is defined in Section 2(g) to mean every inquiry, other than a trial, under the Code. These may include proceedings relating to remand, bail, taking of cognizance, issuance of process, furnishing of copies, committal proceedings and framing

of charges. In this case, though there were sufficient materials to indicate that Kaliyappan was suffering from mental illness even at the stage of committal, no steps were taken by the committal Court under Section 328 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

CORAM:

 Mr. JUSTICE P.N. PRAKASH

PRONOUNCED ON: 04.09.2020

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Notes on provisions regarding accused person of unsound mind

S 328 of CRPC(amended by amendment Act 2008 with effect from 31-12-2009)

Procedure in case of  accused being lunatic:-

1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence , the Magistrate shall inquire into the fact of such unsoundness of mind and shall cause such person to be examined by Civil Surgeon or other medical officer of district and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to writing.

(1-A) If civil surgeon finds accused to be of unsound mind,he shall refer such person to a psychiatrist for care and treatment and psychiatrist shall inform Magistrate whether accused is suffering from unsoundness of mind or mental retardation:

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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, Vs  The State of Maharashtra,

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

Citation: 2016 ALLMR(CRI)2172

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