While noting that in the case, the Sessions Court had neither followed the provisions of Section 328 or Section 329 Cr.P.C. nor the mandate of Section 105 of the Mental Healthcare Act, the Kerala High Court allowed the challenge to an order passed by the Special Judge on the ground that the accused was suffering from Bi-polar Disorder with depression and suicidal tendency and, therefore, was incapable of making his defence.

The Single Judge Bench of Justice K. Babu observed that “Under Sections 328 and 329 of Cr.P.C. the Sessions judge had the onerous responsibility to hold an inquiry regarding the soundness of the accused’s mind and his consequent incapacity to make his defence. Under Section 105 of the Mental Healthcare Act, if any proof of mental illness was produced and was challenged by the other side, the Court shall refer the same for further scrutiny to the Board concerned, and the Board shall, after examination of the person alleged to have a mental illness, either by itself or through a committee of experts, submit its opinion to the Court”.

Advocate Joseph George appeared for the Petitioner, whereas Public Prosecutor G. Sudheer appeared for the State.

In this case, an application filed under Section 328 of Cr.P.C., was under challenge wherein the petitioner was accused in a session’s case for offences under Section 377 of Indian Penal Code, 1860 (IPC) and Sections 9(m) & 9(n) read with Section 10 of POCSO as well as the offence of unnatural carnal intercourse. It was the case of the petitioner that he was suffering from Bi-polar Disorder with depression and suicidal tendencies and, therefore, he was incapable of making his defence. The petitioner relied upon medical documents to substantiate his contentions and further pleaded that he was undergoing treatment for demyelination from 2014 onwards and was thus not fit to stand for trial. However, the Special Judge had held that he had failed to establish that he was of unsound mind and consequently capable of making his defence.

After considering the submission, the Bench contemplated the procedure to be followed vis-à-vis the statutory scheme of Section 328 and 329 of CrPC when the Courts dealt with an accused person of unsound mind.

“Section 328 (1) provided that when a Magistrate holding an inquiry had reason to believe that the person, against whom the inquiry was to be held was of unsound mind and consequently incapable of making his defence, the Magistrate should inquire into the fact of such unsoundness of mind, and should cause such person to be examined by the civil surgeon of the District or such other medical officer as the State Government may direct, and thereupon should examine such surgeon or other officers as a witness, and should reduce the examination to writing”, added the Bench.

The Bench further navigated through subsection (1) which provided that if at the trial of any person before a Magistrate or Court of Session, it appeared to the Magistrate or Court that such person was of unsound mind and, consequently, incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it was satisfied with the fact, he shall record a finding to that effect and shall postpone further proceedings in the case.

The Bench explained that the opinion of the Board referred to in Section 105 of the Mental Healthcare Act shall form the foundation of the decision of the Court on the question of whether the trial in respect of the person could have proceeded or not.

In the present case, apparently, the Sessions Court neither had followed the provisions of Section 328 or Section 329 Cr.P.C. nor the mandate of Section 105 of the Mental Healthcare Act, added the Bench.

Perusing Section 331 which provided for the procedure of resumption of inquiry, the High Court clarified that when in the committal proceedings, the Magistrate found materials or circumstances to doubt the capacity of the accused to stand for trial, he was bound to proceed as provided under Section 328.

The High Court therefore concluded that if the Magistrate had reason to believe that the accused produced before him was of unsound mind, and consequently, incapable of making his defence, the Magistrate shall cause that accused to be examined by the civil surgeon or such Medical Officer as the State Government directs.

The High Court also referred to Section 105 of the Mental Health Care Act which dealt with the procedure to be followed in a judicial process where any proof of mental illness of a person was produced.

Cause Title: XXXX v. State of Kerala [Neutral Citation No.: 2023:KER:35383]

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Kerala High CourtJustice K. Babu

Pankaj Bajpai