Kerala High Court: In a challenge against order dated 4-1-2023 for an application filed under Section 328 of Criminal Procedure Code, 1973 (‘CrPC’), K. Babu, J. set aside the said order while advocating for rights of the accused who is a person of unsound mind in accordance with the provisions under Section 328 and 329 of CrPC and Section 105 of the Mental Healthcare Act, 2017. The Court also directed the State Police Chief to ensure that Police Officials are sensitized about the said provisions for ameliorating the grievances of the mentally ill persons.
The petitioner (accused) faced charges under Section 377 of Penal Code, 1860 (‘IPC’) and Sections 9(m) and 9(n) r/w Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). He filed an application under Section 328 CrPC through his wife alleging that he was suffering from Bi-polar Disorder with depression and suicidal tendency, also undergoing treatment for demyelination and was unfit for trial, incapable of making his defense through supporting medical documents.
The Trial Court found the petitioner unable to establish his unsoundness of mind for incapability of making his defense and held that there was no requirement for conducting an enquiry under Section 328 of CrPC saying that he was prosecuting the case properly.
The Court perused the discharge summaries of treatment issued by the Research Institute revealing the clinical condition of the petitioner. The treatment records stated that the petitioner was consulting a psychiatrist for “preoccupied with thoughts, sadness, fatiguability, lack of confidence, lack of interest in going for job, expressing suicidal ideas.”
The Court pointed towards and scrutinized Sections 328 and 329 of CrPC contemplating the procedure to be followed by the Courts dealing with an accused who is a lunatic/person of unsound mind regarding inquiry, examination by medical officer, record of findings and postponement of further proceedings. The Court also looked at the provisions under Sections 330 and 331 of CrPC regarding further process.
The Court further perused Section 105 of Mental Healthcare Act, 2017 which lays the procedure to be followed in judicial proceedings wherein, proof of mental illness of a person is produced. The Court relied on Vivian Rodrick v. State of W.B., (1969) 3 SCC 176 wherein, the Supreme Court observed that “if a doubt arises in the mind of the Court that there is something in the demeanor of the accused which would suggest that he is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court to try the fact of such unsoundness of mind and incapacity of the accused.” The Court in the case of I.V. Shivaswamy v. State of Mysore, (1971) 3 SCC 220 restricted any mandatory rule for elaborate enquiry by the Sessions Judge, but do so in case of serious doubt.
The Court further referred to catena of cases dealing with Sections 328 and 329 of CrPC along with the case of Prakash Nayi v. State of Goa, (2023) 5 SCC 673 wherein, the Supreme Court clarified that “the whole idea 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.” The Court referred to Rattiram v. State of M.P., (2012) 4 SCC 516 and said that a fair and impartial trial is an insegregable facet of Article 21 which aims that the accused is not prejudiced, injustice is ostracised and fairness is not hampered in the interest of the accused, victim and the society.
With a view that “A fair trial demands the matter be reconsidered by the trial Judge”, the Court set aside order dated 4-1-2023 and directed the Trial Court to consider the instant matter and proceed in accordance with the procedure laid in Chapter 25 of CrPC and Section 105 of the Mental Healthcare Act, 2017. The Court on suggestion by the Amicus Curiae directed the State Police Chief to ensure that all Police Officers in the State Police Stations are sensitized about relevant provisions of Mental Healthcare Act, 2017 so that effective compliance with the said provisions is ensured. The step would, in the Court’s view, pave the way for ameliorating the grievances of the mentally ill persons.
[XXX v. State of Kerala, 2023 SCC OnLine Ker 4476, Order dated 26-06-2023]
Order by: Justice K. Babu
Advocates who appeared in this case :
For Petitioner: Advocate Joseph George, Advocate P.K. HASSANKUTTY, Advocate P.A. REJIMON;
For Respondent: Public Prosecutor G. Sudheer.
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