Procedure U/S 329 CrPC For Accused With Unsound Mind Applies Only After Framing Of Charges: J&K High Court

A bench of Justice Sanjay Dhar emphasized that the trial court cannot entertain an application under Section 329 Cr.P.C before the trial commences. This observation came in response to a petition filed by Johar Mehmood, a mentally ill accused, challenging the dismissal of his application seeking an inquiry into his mental health.

The case stems from FIR under Section 302 of the Indian Penal Code (IPC), alleging murder. Mehmood, the petitioner, lodged in District Jail Amphalla, Jammu. The petitioner, through his mother Rashida Begum, filed an application under Section 328 Cr.P.C before the Judicial Magistrate First Class (JMIC), Jammu, seeking an inquiry into his mental health, claiming that he was incapable of defending himself due to his unsound mind. However, the JMIC dismissed the application on August 12, 2024, citing lack of jurisdiction as the case had already been committed to the Principal Sessions Judge, Jammu.

Subsequently, the petitioner approached the High Court, which, in its order dated August 30, 2024, directed him to file an application under Section 329 Cr.P.C before the Sessions Court. The petitioner complied, but the Principal Sessions Judge rejected his application on October 22, 2024, stating that the trial had not yet commenced and that the petitioner appeared to be attempting to delay the proceedings. This prompted the petitioner to approach the High Court.

Justice Dhar, after hearing both parties and perusing the case record, delved into the provisions of Section 329 Cr.P.C. The court noted that Section 329 comes into play only after the trial commences, which begins with the framing of charges.

The court observed that sub-section (1) of Section 329 operates before the conclusion of the prosecution evidence, while sub-section (2) operates after the prosecution evidence has been closed and the defense stage begins.

“It also needs to be noticed that the trial of a case commences upon framing of the charges. Therefore, Section 329 of the Cr.P.C would come into play only after the framing of the charges and not prior to that", the court opined.

The court emphasized that the trial court cannot exercise its powers under Section 329 Cr.P.C before the charges are framed. In this case, since the charges had not yet been framed, the Sessions Judge was correct in holding the petitioner's application as premature.

However, the court refrained from commenting on the merits of the petitioner's mental health claims, stating that the matter needed to be re-examined by the trial court once the trial commenced.

Justice Dhar, thus remanded the petitioner's application to the trial court, directing it to consider the application afresh after the trial begins. The court also instructed the trial court to decide the application without being influenced by its earlier observations on the merits of the case.

Case Title: Johar Mehmood Vs UT Of J&K

Citation: 2025 LiveLaw (JKL)

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