The Bombay High Court, Nagpur Bench has held that a trial court failed to perform the mandatory procedure under Section 329(3) and 330 of the CrPC before rejecting a discharge plea based on an accused person's mental incapacity. The Court clarified that the trial court was required to first determine if the mental unsoundness rendered the accused incapable of making a defence. If so, the trial court had to evaluate the prosecution's evidence to see if a prima facie case was made out; if no such case existed, the court was obligated to discharge the accused and proceed.

The Court further held that the trial court's finding that there was "no consistent opinion" among three examining doctors regarding the accused's unsoundness of mind was perverse to the medical evidence on record, where all three doctors had, in substance, deposed that the accused was incapable of understanding the nature of the proceedings against him or of defending himself.

A Bench of Justice Mehroz K. Pathan observed, “…The learned Trial Court has failed to apply the provisions of Section 329 (3) and 330 of Cr.P.C. Thus in my opinion, a case is made out by the Applicant for consideration of his case on merits and discharge of the accused as per provision of Section 329(2) of Cr.P.C., as it appears that the Applicant is incapable of entering defence. This exercise as provided under Section 329(2) of Cr.P.C. ought to have been undertaken by the trial Court to find out that whether or not a prima facie case is made out against the accused from the record of evidence. The aforesaid task is necessary to be undertaken before postponing the trial or discharging the accused so as to deal with him in the manner provided under Section 330 of Cr.P.C. The findings recorded by the learned Additional Sessions Judge in its impugned order dated 04/08/2025 that there is no consistent opinion of all the doctors examined before the Court that the applicant is of unsound mind is perverse.

“…The learned Trial Court has failed to apply its mind to the psychiatric assessment report as well as to the questions put to three Doctors, who were examined on the directions of the Court itself. The findings of the learned Trial Court that there is no consistent opinion of all Doctors, who were examined before the Court that the applicant was of unsound mind, appears to be perverse to the depositions of all three Doctors…”, it noted.

Advocate V.H. Pandey appeared for the applicant and A.M. Ghogre, APP appeared for the respondent.

The applicant, a 19-year-old, was being prosecuted for offences under Sections 323, 354 and 354A of the IPC read with Sections 8, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012. He had filed an application under Section 227 of the Cr.P.C. seeking discharge on the ground that he was mentally incapacitated and unable to understand the consequences of his actions, relying on a Malin's Intelligence Scale test showing a full-scale IQ below 70.

The Trial Court had directed the Civil Surgeon, Bhandara, to examine the applicant, who submitted a psychiatric assessment report diagnosing mild intellectual disability. Thereafter, three doctors who had examined the applicant were examined as witnesses before the Trial Court. Despite their depositions, the Trial Court rejected the discharge application, holding that there was no consistent medical opinion that the applicant was of unsound mind.

Considering the depositions of the three doctors, the Court found that each had, in substance, stated that the applicant could not understand the consequences of his acts, could not defend himself independently, and could not comprehend concepts such as modesty relevant to the charges against him, with one doctor recording the applicant's mental age as around 14 years against a physical age of 20.

“After going through the testimonies of three Doctors, who had examined the applicant as well as psychiatric assessment report, which has categorically stated that the applicant is suffering from mild intellectual disability, it appears that the application for discharge on the ground of mental incapacitation was wrongly rejected by the learned Trial Court”, it noted.

“…Section 227 of Cr.P.C. provides for discharge before framing of charge, the discharge referred under Section 329 (2) of Cr.P.C. operates even after framing of charge. However, the discharge application under Section 329 (2) of Cr.P.C. will have to be necessarily adjudicated with the same parameters as laid down in Section 227 of Cr.P.C. and the procedure laid down under Section 330 of Cr.P.C. The Magistrate will have to therefore necessarily examine whether there is sufficient evidence in the chargesheet to prosecute and frame the charge even against the accused who is of unsound mind and determine whether release of accused can be ordered as per Section 330 of Cr.P.C. That exercise is not undertaken by the learned Trial Court while passing the impugned order. Hence, I am inclined to remand back the matter with a direction to the Trial Court to determine whether release can be ordered taking into consideration the nature of the act committed and the extent of unsoundness of mind as per Section 330 (3) of Cr.P.C”, the Bench noted.

The Court accordingly quashed the impugned order and remanded the matter to the Trial Court to form a prima facie opinion on the sufficiency of material in the charge-sheet and to thereafter deal with the accused in the manner contemplated under Section 330(3), directing that the discharge application be decided within two months. The Criminal Revision Application was allowed in these terms, with fees of the appointed counsel for the complainant directed to be paid by the High Court Legal Services Sub-Committee, Nagpur.

Cause Title: Lucky @ Pankaj s/o Viveknarayan Mishra v. State of Maharashtra and another (Neutral Citation: 2026:BHC-NAG:12672)

Appearances:

Applicant: V.H. Pandey, Advocate.

Respondent: A.M. Ghogre, APP, Rohini Pande (appointed), Advocates.

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