Trial Court Not Bound To Conduct Enquiry U/S 329 CrPC Merely On Counsel's Submission That Accused Is Of Unsound Mind: Kerala High Court

The Kerala High Court recently held that a trial court is not bound to conduct a detailed enquiry into whether an accused is of unsound mind simply based on a submission made by the counsel for the accused.

A single bench of Justice K Babu observed,

“If there is something in the demeanour of the accused or in the facts of the case, which raise doubt in the mind of the Court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the Court to try the said fact before proceeding with the trial into the charge.”

The court examined the statutory mandate under Section 329 of the Code of Criminal Procedure that deals with the procedure when a person of unsound mind is tried before a court. For Section 329 CrPC to apply, the person must “appear” to the court to be of unsound mind and incapable of making his defence, the court clarified.

“Going by the statutory provision, the essential condition for the applicability of this Section is that it must appear to the Court that the accused brought before it is of unsound mind. The word ‘appears’ in the provision is guidance for construction. It refers to a circumstance with some indication that makes it appear to the judge that the accused is of unsound mind and consequently incapable of making his defence. “

The petitioner in the case was accused of offences under Section 8 read with Sections 7 (sexual assault), 9 (aggravated sexual assault) read Section 10 (punishment for aggravated sexual assault) of the POCSO Act, 2012 and Section 511(punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) read with Section 377 (unnatural offences) of the Indian Penal Code.

While undergoing trial the counsel for the petitioner filed an application to subject the petitioner to a medical examination on the ground that the petitioner was mentally unstable and incapable of understanding the consequences of his actions. However, according to the prosecution there was no material brought on record to show that the petitioner was of unsound mind. The application of the petitioner was not allowed by the trial court, and this order of the court below was challenged by the petitioner.

The court also relied on the judgment of the Supreme Court in I V Shivaswamy vs. State Of Mysore AIR 1971 SC 1638, which observed that it is not necessary for the judge to conduct a detailed enquiry into whether the accused is of sound mind or not just because the counsel for the accused uses the ground of insanity.

In the matter at hand the court observed that the accused had actively participated in the trial so far. He had even been examined under Section 313 CrPC by the defence counsel. The court had noted that he was capable of answering the questions that were asked. The Court held that as the trial court had examined the accused and it did not appear to the sessions judge that the accused was of unsound mind it was right to not order an enquiry under Section 329 CrPC. Hence, the Court did not interfere in the order of the trial court.

Counsel for Petitioner: Adv. Sharan Shahier & Adv. Rakhy Baby

Public Prosecutor: Adv. G Sudheer 

Case Title: Yasin Sunu V State of Kerala

Citation: 2023 LiveLaw (Ker) 102

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