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 High court can quash prosecution under The prevention of Corruption Act if there is compromise between victim and accused?

  Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others. {Para 42}

43. As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely, (i) those who paid money and got orders of appointment; and (ii) those who paid money but failed to secure employment. If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise.

44. It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. Therefore we hold that the High Court was completely in error in quashing the criminal complaint.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO. 1514 OF 2022 

 P. DHARAMARAJ Vs SHANMUGAM & ORS.

Coram: S. ABDUL NAZEER; J., V. RAMASUBRAMANIAN; J. 

Author: V. RAMASUBRAMANIAN, J.

Dated: September 8, 2022

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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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Whether court can acquit accused even if he has failed to prove that he was insane at the time of incident?

The   law   undoubtedly   presumes   that   every   person

committing an offence is sane and liable for his acts, though in

specified circumstances it may be rebuttable.  The doctrine of

burden of proof in the context of the plea of insanity was

stated as follows in  Dahyabhai  Chhaganbhai  Thakkar   v.

State of Gujarat, (1964) 7 SCR 361 :

“(1) The prosecution must prove beyond reasonable

doubt that the accused had committed the offence

with   the   requisite   mens   rea,   and   the   burden   of

proving that always rests on the prosecution from the

beginning to the end of the trial. 

(2)   There   is   a   rebuttable   presumption   that   the

accused   was   not   insane,   when   he   committed   the

crime, in the sense laid down by Section 84 of the

Indian   Penal   Code:   the   accused   may   rebut   it   by

placing before the court all the relevant evidence oral,

documentary   or  circumstantial,   but   the  burden  of

proof upon him is no higher than that rests upon a

party to civil proceedings. 

(3)  Even  if  the  accused  was  not  able  to   establish

conclusively   that   he   was   insane   at   the   time   he

committed the offence, the evidence placed before the

court by the accused or by the prosecution may raise

a   reasonable   doubt   in   the   mind   of   the   court   as

regards one or more of the ingredients of the offence,

including mens rea of the accused and in that case

the court would be entitled to acquit the accused on

the ground that the general burden of proof resting

on the prosecution was not discharged.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO.814 OF 2017

DEVIDAS LOKA RATHOD . V STATE OF MAHARASHTRA 

Dated:JULY 02, 2018.
Citation: (2018) 7 SCC 718

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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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Whether mere prior incidence of psychiatric treatment is enough to prove legal insanity?

State of Maharashtra vs. Santosh Maruti Mane, Confirmation Case No. 2 of 2013, decided on September 9, 2014

Read full judgment here;click here
Rejecting the plea of insanity, a division bench comprising of VM Kanade and PD Kode,  JJ confirmed death penalty to a former State Transport bus driver who had killed 9 persons and injured another 36 in a “road rage” incident in Pune in 2012. Defending the accused, advocate  Jaideep Mane relied on the defence of insanity under Section 84, IPC contending that the accused had been undergoing psychiatric treatment prior to this incident. The Court, however rejected the argument observing there wasn’t enough evidence to prove that the accused was suffering from a serious mental disorder when he committed the act and that the evidence produced by the psychiatrist was “not reliable.” The  Bench also observed that mere prior incidence of treatment was not sufficient and it has to be established that at the time of

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Whether person suffering from mental disease is exempted from criminal liability?

 Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical 

condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, in which it has been held as follows:

9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.

10. In State of M.P. v. Ahmadull,AIR 1961 SC 998, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.

11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought.

Accused seeking exoneration from criminal liability on the ground of of unsoundness of mind should prove legal insanity and not medical insanity. Even if accused establishes unsoundness of mind IPC will not come to his rescue if it is found that he was knowing that what he was doing was wrong or contrary to law.

Supreme Court of India

Surendra Mishra vs State Of Jharkhand on 6 January, 2011

Author: C K Prasad

Bench: Harjit Singh Bedi, P. Sathasivam, Chandramauli Kr. Prasad

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