BNSS Gives Wider Protection To Accused Of Unsound Mind Or Intellectual Disability, Will Apply Retrospectively: Kerala High Court

Justice K Babu held that BNSS will apply retrospectively to proceedings prior to July 01, 2024, to ensure fair trial for persons with intellectual disability or mental disability.

The Court was considering whether an accused person who has Dementia is capable of defending himself in a trial. It held that persons suffering from intellectual disability like Alzheimer's Dementia cannot be differentiated under the CrPC and BNSS as it would amount to a violation of Article 14 of the Constitution.

“As I discussed above, Chapter XXVII of the Sanhita has given wider protection to a person of unsound mind or a person suffering from intellectual disability. where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024.”

The petitioner, a 74-year-old man is accused of alleging commission of offences punishable under Section 13 (misconduct by a public servant) of the Prevention of Corruption Act.

The petitioner submitted that he was suffering from Alzheimer's Dementia and submitted an application to postpone the trial before the Court of Enquiry Commissioner and Special Judge.

The Special Court on interaction with the petitioner found that he was not suffering from any infirmity or unsoundness of mind. According to orders of the Court, the petitioner was examined medically and a certificate was issued stating that he was suffering from severe dementia with less chance of complete recovery. The Doctor also pointed out that the mental status of the petitioner has to be assessed in detail by a psychiatrist. The Special Judge thus directed that the party be subjected to an examination by a psychiatrist to obtain a certificate regarding mental unsoundness. The petitioner was therefore directed to approach the Mental Health Centre to get a certificate regarding his mental status. This order is under challenge before the High Court.

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, which pertains to procedure for accused persons of unsound mind. He contended that the petitioner is suffering from mental illness within the ambit of the term unsound mind under the CrPC.

The Amicus Curiae submitted that the Court has an onerous responsibility to proceed under Chapter XXV of the Code and Section 105 of the Mental Healthcare Act, 2017 if the petitioner is incapacitated to defend himself due to Alzheimer's Dementia. Amicus also submitted that nothing prevents the Court from recognizing that dementia is a form of mental disability that may incapacitate the accused from defending himself in judicial proceedings.

The Court found that Dementia is a neurogenerative disease causes that a progressive loss of mental capacity. It noted that persons with Dementia lose complex brain functions and suffer from language problems and memory loss and that there is no cure to prevent the disease from progressing.

Under CrPC, the Court stated that the Magistrate is bound to proceed under Section 328 if the accused is incapacitated from defending himself in trial due to unsoundness of mind. It noted that the Magistrate, after conducting an inquiry, should postpone the proceedings if the accused is found to be incapacitated. It stated that the 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.

Under the CrPC, protection is provided to individuals with unsound mind or mental retardation. However, the Mental Health Care Act, of 2017 does not recognize mental retardation within its definition of mental illness. In contrast, the BNSS offers protection specifically to individuals with unsound minds or intellectual disability.

"A conjoint reading of the Mental Healthcare Act and the relevant provisions in the Sanhita indicates that the Legislature has given a wider canvass to the phrase 'incapability of making defence' by incorporating the term “intellectual disability”. While enacting the Sanhita, the Legislature has noted of the definition of the term “mental illness” provided in the Mental Health Care Act, 2017", stated the Court.

The Court found that the accused has the right to a fair and impartial trial. It stated that mental or intellectual disability causes prejudice to the accused and prevents fair trial.

The Court noted that the BNSS came with effect from July 01, 2024. And, all pending proceedings where steps were taken before July 01, 2024, will be dealt with under the CrPC.

Nonetheless, it held that provisions of BNSS must be applied retrospectively to ensure free trial to accused persons suffering from an intellectual disability that incapacitates them from defending themselves in the trial. This is for the reason that CrPC does not grant protection to persons suffering from intellectual disability.

The Court observed that persons suffering from mental disability or intellectual retardation cannot be differentiated. The Court thus stated that BNSS will apply retrospectively to proceedings prior to July 01, 2024, to ensure that protection is also granted to persons suffering from intellectual disability.

In the facts of the case, the Court found that the order of the Special Judge was patently illegal and improper. It thus set aside the order and directed the Special Judge to reconsider the application under the BNSS.

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