Trial Against Person With Alzheimer's Must Be Postponed Under CrPC & BNSS If Accused Incapable Of Making His Defence: Kerala High Court

Chapter XXV of CrPC pertains to provisions for accused persons of unsound mind. It includes persons suffering from unsound mind or mental retardation. Chapter XXVII of the BNSS deals with provisions for accused persons with mental illness which includes persons with unsound mind or intellectual disability. The statutes contemplate postponing trial if accused is incapacitated to defend himself.

Justice K Babu noted that dementia is a form of mental disability which include problems with language, memory loss, etc. and thus an affected person may be prevented from defending his case.

“The 'intellectual disability' referred to in Section 368 of the Sanhita includes Alzheimer's Dementia if it is in such a stage in which the accused person is incapable of making his defence. Therefore, I am of the view that a person suffering from 'Alzheimer's Dementia', which is of such a degree that renders him incapable of making his defence, is entitled to the protection contained in Chapter XXV of the Code and Chapter XXVII of the Sanhita”.

The petitioner, a 74 year old man, suffering from Alzheimer's Dementia was tried for offences punishable under Section 13 (misconduct by a public servant) of the Prevention of Corruption Act.

The petitioner's counsel argued that the petitioner, suffering from Alzheimer's dementia, is unable to defend himself and should be granted protection under Chapter XXV of the CrPC. He contended that the petitioner is suffering from mental illness within the ambit of the term unsound mind under the CrPC.

The Court found that Dementia is a neurogenerative disease causes that a progressive loss of mental capacity. Court said, “As per the available medical advancements, dementia continues to be a disease/disorder without a cure, and the best that can be offered is care and support. It is a form of mental disability that may affect the capacity of an accused person to effectively participate in judicial proceedings.”

Under CrPC, the Court Magistrate can only proceed if he is satisfied that the accused is not incapable due to unsoundness of mind and can defend himself in trial. It noted that the Magistrate should postpone the proceedings if the accused is found to be incapacitated.

In the facts of the case, the Court found that the order of the Special Judge in directing the petitioner to approach the Mental Health Centre for a psychiatrist examination to get a certificate of unsoundness of mind is patently illegal and improper. "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," Court said.

It thus set aside the order and directed the Special Judge to reconsider the application under the BNSS. The Court noted that BNSS will apply retrospectively to protect persons with intellectual disability.

Counsel for Petitioner: Advocates T.Kabil Chandran, T.D.Robin, R.Anjali, Aayshath Najila Schemnad

Counsel for Respondents: Amicus Curiae Renjith B. Marar, Amicus Curiae V.Ramkumar Nambiar

Case Number: CRL.MC NO. 6370 OF 2023

Case Title: V.I. Thankappan v State of Kerala

Citation: 2024 LiveLaw (Ker) 563