Madras High court guidelines for trial of person of unsound mind in criminal case

54. In fine, this Court issues the following directions:

i. the trial Court shall conduct enquiry under the first part of

Section 329(2) Cr.P.C., to find out if the accused in this case is

capable of entering into his defence in praesenti;

ii. if the trial Court finds that the accused in this case is mentally

fit to face the trial, the trial shall be commenced and completed

within 3 months from the date of such determination;

iii. in the event of the trial Court holding that the accused is not

mentally fit to face the trial, the trial Court shall conduct an

enquiry under the second part of Section 329(2) Cr.P.C. and

afford an opportunity to the family of the accused to engage a

lawyer and if the family is not in a position to engage a lawyer,

the trial Court shall appoint a senior lawyer of the local bar

with not less than 20 years of standing and with rich experience

in criminal law, to take up the case of the accused in the

enquiry, for whom, remuneration shall be paid by the local

Legal Services Authority;

iv. in the enquiry, it is open to the trial Court to examine any

witness, including the doctors who had treated the accused

prior to the incident; the native doctor to whom the accused

was taken on the fateful day, can also be examined;

v. the trial Court may also enquire the doctors who treated the

accused after his arrest while he was in judicial custody;

vi. the counsel for the accused may also be permitted to place

materials before the Court in support of the case of the accused;

vii. at the conclusion of the enquiry, if the trial Court is of the

opinion that the criminal act fell within the contours of Section

84 IPC, it will then be open to the trial Court to discharge the

accused and follow the procedure set out in the proviso (a) to

Section 330(3) Cr.P.C.;

viii. In the event of the trial Court not discharging the accused, it

shall proceed under the proviso (b) to Section 330(3) Cr.P.C. In

that case, the finding arrived at by the trial Court against the

accused shall, in no manner, be binding on the accused in the

trial against him after he is certified as mentally fit to face the

trial in the future. In other words, it will be open to the accused

to establish once again before the trial Court that his case

would fall within Section 84 IPC, because, what was done

when the accused was mentally absent in the Court, cannot be

put against him when he is mentally stable subsequently.

55. At this juncture, this Court is impelled to exhort the trial Judges to get themselves thoroughly acquainted with the provisions in Chapter XXV of the Code of Criminal Procedure, because, as per the W.H.O. predictions, there is going to be a huge spike in our country in the number of people with

mental illness, as a sequel to which, there is bound to be a paradigm shift in the nature of crimes in the near future, to tackle which, our legal system should gear up. In this context, it may be worthwhile to quote Mr.G.P.Pilania, M.P., from his speech in the Parliament on 18.12.2008 when the 2009 amendments were introduced:

“The sixth point pertains to inquiry and trial of persons of

unsound mind, who cannot look after themselves, and who are

persons who have been betrayed by God and society. A special

provision to take care of those who are of unsound mind has been made, which is laudable.” (emphasis supplied)

The Courts must, therefore, act and discharge their constitutional obligations as ever-vigilant sentinels of the rights of these persons.

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 S/o.Muniyappan Aanurpatty Vs State.

CORAM:

THE HON'BLE Mr. JUSTICE P.N. PRAKASH

PRONOUNCED ON: 04.09.2020.

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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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Questions and answers on law (Part 45)

 Q 1:- In sessions triable case, one of the accused is juvenile. What order is to be passed to send him before Juvenile Justice Board?

Ans:- The court should follow procedure laid down by Supreme court in the case of Rishipal Singh Solanki v. State of Uttar Pradesh.

"The following questions arise for consideration:

(i) What is the procedure to be followed when a person claims juvenility in a regular court where he got arrayed as an accused?

(ii) What is the mode of proof in the matter of juvenility and the burden is upon whom?

(iii) Once it is found that the claim of juvenility in the affirmative, what should be the procedure to be followed?

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Difference between procedure to be adopted by Magistrate in inquiry for an offence committed by a person of unsound mind and person suffering from mental retardation

 Thus, in law, there exists a clear distinction between a mentally ill person and a person suffering from mental retardation. 

In Suchita Srivastava and another vs. Chandigarh Administration(2009) 9 SCC 1, the Supreme Court held that this distinction  can be collapsed for the purpose of empowering these respective classes of persons, but, cannot be disregarded so as to interfere with their personal autonomy.

25. Reverting to Section 328 Cr.P.C., the inquiry in respect of

persons of unsound mind is governed by Section 328(3) Cr.P.C., whereas, the enquiry in respect of persons suffering from mental retardation is governed by Section 328 (4) Cr.P.C. In either category, the first stage is that, if the Magistrate receives information that the accused is of unsound mind or

suffers from mental retardation, he is required to determine whether such condition, in praesenti, renders the accused incapable of entering defence. If the answer to this question is in the affirmative, the Code prescribes two different consequences depending on whether the accused is suffering from unsoundness of mind or mental retardation.

26. If the case falls in category one (persons of unsound mind), the Magistrate is required to examine the record of evidence, hear the advocate for the accused, and may discharge the accused if he finds that no prima facie case has been made out. If a prima facie case is made out, the Magistrate is required to follow the procedure set out in the proviso to Section 328 (3) Cr.P.C. If the case falls in category two (persons suffering

from mental retardation), Section 328(4) Cr.P.C. empowers the Magistrate to immediately order closure of the enquiry and direct that the accused be dealt with under Section 330 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 

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Under which circumstances the court can discharge accused after framing of charge?

 Even though Section 329(2) Cr.P.C. contemplates a discharge, it

is necessary to notice that this expression has been used rather loosely. As

pointed out supra, Section 329 Cr.P.C. operates only at the stage of trial, i.e.,

post the stage of framing charges. Under the Code, provisions to discharge an

accused from the prosecution are available in Sections 227, 239 and 245

Cr.P.C. These powers are available to the trial Court only prior to the framing

of charges. However, Section 329(2) Cr.P.C operates at the stage of trial and

contemplates a discharge of the accused even after the framing of charges. A

fortiori, it would seem incongruous to import the tests evolved by the Supreme Court in State of Orissa vs. Debendra Nath Padhi (2003) 2 SCC 711 under Section 227/239 Cr.P.C at the stage prior to framing of charges, to the discharge contemplated under Section 329(2) Cr.P.C., which operates at the stage of

trial i.e., post the framing of charges. As pointed out by the Supreme Court in

Ratilal Bhanji Mithani vs. State of Maharashtra and others7, the normal

rule is that once a charge is framed, the Magistrate/Court has no power under

Section 227 Cr.P.C. or any other provision of the Code to reverse the charge

and discharge the accused. Section 329(2) Cr.P.C. is an exception to this rule.{Para 33}

Another consideration is the fact that an “acquittal” under Section 335  Cr.P.C. on the ground of unsoundness of mind at the time of commission of the act is contemplated only when trial is resumed under Section 331 Cr.P.C. after the accused is mentally fit to stand trial. Thus, a person with incurable mental illness will never be in a position to face trial. Under these

circumstances, Section 329(2) Cr.P.C. can be gainfully employed to discharge these persons by permitting their advocates to adduce materials to prove their mental incapacity so as to avail the exception under Section 84 of the IPC. These considerations impel this Court to hold that the expression “discharge” cannot be construed as being akin to the tests applied by the Court under Section 227 or 239 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 

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