In a recent verdict, the Single Bench of Justice PN Prakash of the Madras High Court extensively explained the procedure to be adopted by the Courts during Inquiry/ Trial for an offence, allegedly committed by a person of unsound mind.
The Court has examined various aspects of the matter including:
The order has come in a petition filed by the father of a murder accused, apprehending that a trial against his son shall be commenced without ascertaining the mental state of schizophrenia.
Upon a finding submitted by the Medical Board of a Government Hospital, the High Court was satisfied that the accused was not fit to face the trial due to his mental illness and hence dropped the proceedings against him in terms of Section 84 of IPC.
The Court noted that despite raising of plea of insanity at the outset, the Magistrate commenced the proceedings under Sections 207 and 209 CrPC and committed the case to the Court of Sessions. Even during the committal proceedings, the Magistrate did not take any steps to satisfy himself as to whether the accused was in a sound state of mind to understand the proceedings.
In this backdrop the Court observed:
"The expression "inquiry" is defined in Section 2(g) to mean every inquiry, other than a trial, under the Code. These may include proceedings relating to remand, bail, taking of cognizance, issuance of process, furnishing of copies, committal proceedings and framing of charges. In this case, though there were sufficient materials to indicate that Kaliyappan [accused] was suffering from mental illness even at the stage of committal, no steps were taken by the committal Court under Section 328 Cr.P.C."
Magisterial Inquiry under Section 328 CrPC
Section 328 CrPC lays down the procedure for holding an 'inquiry' in respect of an accused of unsound mind.
Broadly, it provides that if a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, he shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the prescribed medical authority.
In terms of the medical report, if the accused is found to be of unsound mind and the Magistrate finds that no prima facie case is made out against the accused, he shall discharge the accused
However, if the Magistrate is satisfied that a prima facie case is made out against the accused, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.
The provision further provides that if the accused suffers from mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry.
Elaborating on this legislative stipulation, the Court observed thus:
"The inquiry in respect of persons of unsound mind is governed by Section 328(3) CrPC, whereas, the enquiry in respect of persons suffering from mental retardation is governed by Section 328(4) CrPC.
In either category, the first stage is that, if the Magistrate receives information that the accused is of unsound mind or suffers from mental retardation, he is required to determine whether such condition, in praesenti, renders the accused incapable of entering defence.
If the answer to this question is in the affirmative, the Code prescribes two different consequences depending on whether the accused is suffering from unsoundness of mind or mental retardation.
If the case falls in category one (persons of unsound mind), the Magistrate is required to examine the record of evidence, hear the advocate for the accused, and may discharge the accused if he finds that no prima facie case has been made out.
If a prima facie case is made out, the Magistrate is required to follow the procedure set out in the proviso to Section 328(3) Cr.P.C.
If the case falls in category two (persons suffering from mental retardation), Section 328(4) CrPC empowers the Magistrate to immediately order closure of the enquiry and direct that the accused be dealt with under Section 330 CrPC."
Trial under Section 329 CrPC
Unlike Section 328, Section 329 of CrPC operates at the stage of trial, i.e. after framing of charges.
Broadly, it provides that an accused before the Magistrate/ Sessions Court during trial appears to be of unsound mind, the Court shall, after considering such unsoundness and incapacity, record a finding to that effect and shall refer him to the prescribed medical authority for determination.
If it is informed that the accused so referred is a person of unsound mind, it shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, it shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if it finds that no prima facie case is made out against the accused, it shall discharge the accused.
If it finds that a prima facie is made out against the accused, it shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.
"The first stage under Section 329(2) CrPC is that if the Magistrate/Court receives information during trial that the accused is of unsound mind, the Magistrate/Court is required to determine whether such condition, in praesenti, renders the accused incapable of entering defence.
If the answer is in the affirmative, the Magistrate/Court is required to examine the record of evidence, hear the advocate for the accused, and may discharge the accused if he/it finds that no prima facie case has been made out.
If a prima facie case is made out, the Magistrate/Court is required to follow the procedure set out in the proviso to Section 329 (2) CrPC. The examination of a prima facie case under Section 329(2) CrPC textually, is confined to persons of unsound mind only.
The enquiry under the second part of Section 329(2) CrPC will commence only after the Court gives a finding that the accused is not mentally fit to face trial. Once such a finding is given, the enquiry under the second part of Section 329(2) CrPC shall not be adversarial, but the Court should invoke the parens patriae principle and give a free hand to both sides to adduce material to show that the accused was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what is either wrong and contrary to law.
Section 329(3) CrPC refers to the procedure to be followed if a prima facie case is made out and the accused suffers from mental retardation.
The twin requirements for clause (3) to apply is that first, the accused must be medically certified to be a mentally retarded person, and secondly, the Magistrate or Court must find a prima facie case against such an accused. If these twin conditions are satisfied, then, there is a statutory injunction against the Court from holding trial which is clear from the use of the words "shall not hold the trial" occurring in Section 329(3) CrPC. The mentally retarded accused is then required to be dealt with under the proviso (b) to Section 330 (3) CrPC."
Difference between a 'Mentally Ill Person' and 'Person suffering from Mental Retardation'
Since Section 328 and 329 provide different procedure for a person suffering from 'mental illness' and a person suffering from 'mental retardation', it is necessary to expound the distinction between the two.
It may be noted that the expression "unsoundness of mind" has not been defined anywhere in CrPC. However, Section 2(s) of the Mental Healthcare Act, 2017 defines "mental illness" thus:
"a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs."
Further, the provision clearly provides that mental illness "does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence."
Thus, the Mental Healthcare Act, 2017 carves out mental retardation as a separate category aside from other forms of mental illness. The definition of mental illness found in the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also maintains the aforesaid distinction.
Procedure to be followed during trial when it is found that the accused is a 'Mentally Retarded' person and there exists no prima facie case against him
The High Court pointed out that Mental retardation is conspicuously absent in clauses (1-A) and (2) of Section 329 CrPC, whereas, it is expressly alluded to in clauses (1-A) and (2) of Section 328 CrPC.
In this backdrop it observed thus:
"If this Court were to construe Section 329 (1-A) and (2) CrPC literally, the result would be that these provisions would apply only to persons of unsound mind and not to accused persons who are mentally retarded. Such an interpretation, in the considered opinion of this Court, would lead to several anomalous consequences.
In the first place, if clause (1-A) of Section 329 CrPC is confined to persons of unsound mind alone, then, there would be no provision for medical examination of mentally retarded persons at the stage of trial.
Secondly, if Section 329(2) CrPC is confined to persons of unsound mind alone, it would appear that the avenue of discharge available at the stage of trial is confined only to persons of unsound mind.
As noticed supra, Section 329(3) CrPC applies only if there exists a prima facie case against the mentally retarded accused. If Section 329(2) CrPC is interpreted literally, there would be no provision to discharge a mentally retarded person even if no prima facie case exists against him. These anomalous consequences impel this Court to abandon the literal interpretation of Sections 329(1-A) and (2) Cr.P.C.
The omission of mental retardation in these clauses is clearly the draftsman's devil. In the opinion of this Court, the expression "unsoundness of mind" occurring in clauses (1-A) and (2) of Section 329 Cr.P.C. must be construed to include cases of mental retardation also."
The Court has the following directions to harmoniously read the provision:
Discharge of accused after commencement of Trial
After discharging the accused, either in terms of Section 328 or Section 329(2) of CrPC, the Court should proceed under the Section 330(3)(a) of the Code by handing over custody of the accused to someone after getting sufficient security from him that he will ensure that the accused does not harm himself or anyone.
The Court also pointed out that the word 'discharge' has been used "loosely" under Section 329 as the same relates to trial stage whereas a person can be discharged only before commencement of trial.
Comment on such incongruity the Court said,
"the normal rule is that once a charge is framed, the Magistrate/Court has no power under Section 227 Cr.P.C. or any other provision of the Code to reverse the charge and discharge the accused. Section 329(2) Cr.P.C. is an exception to this rule. Another consideration is the fact that an "acquittal" under Section 335 Cr.P.C. on the ground of unsoundness of mind at the time of commission of the act is contemplated only when trial is resumed under Section 331 Cr.P.C. after the accused is mentally fit to stand trial. Thus, a person with incurable mental illness will never be in a position to face trial. Under these circumstances, Section 329(2) Cr.P.C. can be gainfully employed to discharge these persons by permitting their advocates to adduce materials to prove their mental incapacity so as to avail the exception under Section 84 of the IPC."
Application of Chapter IV of IPC: General exceptions
"Chapter IV – General exceptions" of the IPC is a defence for the accused. The High Court opined that every act should pass through the prism of Chapter IV of the IPC to graduate into an offence.
"If an act complained of falls within the net of the exceptions in Chapter IV of the IPC, it is not an offence at all," it remarked.
In context to application of this provision during at the stage of trial the Court said, "It is trite that the burden cast by Section 105 of the Evidence Act, to bring the case within Chapter IV of the IPC, will rest on the accused during trial and not any time before it."
It further observed that since an inquiry under Section 329(2) of CrPC, which is held by the Magistrate/ Court to determine the soundness of the accused, is conducted during trial— "the advocate of the accused should be permitted to discharge the burden by adducing materials to establish that the case of the accused falls within the General Exceptions in the IPC. This also reinforces the reasoning of this Court that the expression "hearing the advocate of the accused" occurring in Section 329(2) Cr.P.C. should be given an expansive meaning."
Case Title: Kaliyappan v. State
Case No.: Crl OP No. 4993/2018
Quorum: Justice PN Prakash
Appearance: Advocate Sharath Chandran as Amicus Curiae
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