Gujarat HC Sets Aside Death Penalty Imposed On A Woman For Lack Of Inquiry About Her Mental Condition [Read Judgment]

Manjuben was accused of murder of her mother and sister.

Perusing the evidence on record while hearing her appeal, the bench comprising of Justice JB Pardiwala and Justice AC Rao noted that though plea of insanity was not raised before the Trial Court, and no evidence was led in that regard, the FIR itself stated that the mental condition of the accused was quite unstable and she was undergoing treatment in this regard past two years.

Thus, the bench observed that the Trial Court had an obligation to undertake an inquiry under Section 329 of the Criminal Procedure Code so as to ascertain whether the accused was capable of making her defence. The bench observed:

"The case on hand is quite unusual. As noted above, neither the Public Prosecutor nor the Investigating Officer including the defence counsel invited the attention of the trial court to the materials on record as regards the mental ailment of the accused. However, as it has come to our notice, as an Appellate Court, it is our duty to rectify the error so that no doubt remains of any nature in our mind."

Directing the Trial court to conduct an inquiry, the bench said that, if the trial court is convinced that the accused is capable of making her defence, then it shall resume with the trial by framing the charge afresh.

Inquiry Even If No Plea Of Insanity Is Raised

Explaining the scope of Section 329 CrPC, the bench observed that even if the accused had not raised such a plea and even if the defence counsel had not bothered to look into it, still if the materials on record in the form of the documents disclose something about the mental condition of the accused, then it is the duty of the trial court to look into the materials and ascertain the capacity of the accused to enter the defence in accordance with the provisions of Section 329 of the Code. The court said:

"The satisfaction of the trial court should be recorded in so many words. The provisions of Section 329 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot obviously be afforded to an insane person and the non-observance of those provisions must be held to convert a trial into a farce. The courts must, therefore, guard against dealing with the matter of suspected sanity of an accused person in a perfunctory manner as such a course is bound to result in the trial Judge, more often than not, coming to an incorrect conclusion about the sanity of the accused before him"

Appoint Experienced Criminal Lawyers 

The court said that, if the trial Judge is of the view having regard to the serious nature of the crime that the assistance of a seasoned and experienced criminal side lawyer is required, then it would be the duty of the trial Judge to appoint one by fixing appropriate remuneration one befitting to the stature of the said lawyer concerned and thereafter recover the amount from the State Government and pay the same to the concerned lawyer. The bench further said:

"If inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds"

The bench also issued these general directions:

• Whenever any accused person is arrested and there is any history or the conduct of the accused indicating that he is not mentally sound, it is the duty of the Police Officer who has arrested him to produce him before the Medical Officer for his examination with regard to his unsoundness of mind and to obtain the necessary certificate. If he is suffering from any unsoundness of mind, he should be forwarded to a mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further.

• If the Investigating Officer fails to perform his duty of getting the accused person examined, it is the obligation of the Judicial Magistrate before whom he is produced for the first time. If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not. In case of mental insanity, he should be provided with appropriate medical help.

• It should be also borne in mind by the trial Judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate. If the accused is not represented, appropriate legal assistance should be provided to him at the state expenses.

• In case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment. In case of sessions cases of complex or peculiar facts it should be inquired whether he has conducted such case or not. The legal aid to be provided at the State expenses should not be for the namesake. Upon such inquiry only he should be appointed as the advocate for the accused, and that too, after recording his satisfaction of the competency of the advocate.

• The Directorate of Prosecution, Legal Remembrancer and the Principal Secretary, Home Department, must regularly review the manner in which the Public Prosecutors in-charge of the sensitive cases are conducting the trial. Such review should be on a periodic basis and records in this regard shall be maintained.

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