Judge's Duty Is To Assess Mental Capacity Of Accused For Defense U/s. 328 & 329 Of CrPC Or Section 105 Of Mental Healthcare Act: Kerala HC
The Kerala High Court recently while dealing with a plea, of an accused, establishing 'unsoundness' of the mind as a defence in a Criminal case, which came to be dismissed by the Session Judge (Fast Track Special Court, POCSO), Kunnamkulam, noted that neither the provisions of Section 328 nor Section 329 of Code of Criminal Procedure nor the mandate of Section 105 of the Mental Healthcare Act was followed in the present case and observed that Sessions judge had the onerous responsibility to hold an inquiry regarding the soundness of the accused’s mind and his consequent incapacity to make his defence.
The Single Judge Bench of Justice K. Babu was dealing with a Criminal miscellaneous application where the Petitioner, an accused facing Criminal trial under Section 377 of the Indian Penal Code and Protection of Children from Sexual Offences Act, had produced before the Trial Court medical reports and an application through his wife stating that he is suffering from Bi-polar Disorder with depression and suicidal tendency to substantiate that he was incapable of making his defence due to mental illness.
The Session Court held that the Petitioner failed to establish that he is of unsound mind and consequently incapable of making his defence. It was also held that he has been prosecuting the case properly and there is no requirement for conducting an inquiry under Section 328 of Cr. P.C. Being aggrieved with the same, the Petitioner approached the High Court challenging the order of the Trial Court.
Appearing for the Petitioner, Advocate Joseph George along with Advocates P.K.Hassankutty and P.A.Rejimon contended that Court below had not perused the material placed before it to prove the mental illness and the incapacity of the petitioner to make his defence. It was also submitted that Special Judge ought to have referred the petitioner for examination by a Civil Surgeon as contemplated in Section 328 of Cr.P.C as the Court was not an expert in determining the mental status of the accused and analysing the medical reports pertaining to the mental illness.
Appointed by the High Court as the Amicus Curiae, Advocate V. Ramkumar Nambiar, relied on Section 105 of the Mental Healthcare Act, 2017, and submitted that it was mandatory on the part of the Court to refer the matter for further scrutiny to the Board concerned and based on the opinion of the Board or the Committee of the experts, as the case may be, the Court should decide whether the trial of the person could be proceeded or not and on the manner of protection, care and treatment that should be afforded to such persons.
The High Court further noted that in the treatment records marked, it is stated that the petitioner is preoccupied with thoughts, sadness, fatiguability, lack of confidence, and lack of interest in going for a job. Accordingly, the Judge in his order observed that "Under Sections 328 and 329 of Cr.P.C. the Sessions judge had the onerous responsibility to hold an inquiry regarding the soundness of the accused’s mind and his consequent incapacity to make his defence. Under Section 105 of the Mental Healthcare Act, if any proof of mental illness is produced and is challenged by the other side, the Court shall refer the same for further scrutiny to the Board concerned, and the Board shall, after examination of the person alleged to have a mental illness, either by itself or through a committee of experts, submit its opinion to the Court."
It was further observed that "Under Section 105 of the Mental Healthcare Act, if any proof of mental illness is produced and is challenged by the other side, the Court shall refer the same for further scrutiny to the Board concerned and the Board shall, after examination of the person alleged to have a mental illness, either by itself or through a committee of experts, submit its opinion to the Court. The opinion of the Board referred to in Section 105 of the Mental Healthcare Act shall form the foundation of the decision of the Court on the question whether the trial in respect of the person could be proceeded with or not."
The Court also noted that "The concept of “fair trial” is an insegregable facet of Article 21 of the Constitution. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism."
Setting aside the impugned order, the High Court directed the Trial Court to consider the matter in accordance with the Law. Further, considering the suggestions by the Amicus Curiae, the Court directed the State Police Chief to ensure that the Police Officers in all the Police Stations in the State are sensitized to the relevant provisions of the Mental Healthcare Act, 2017 so as to ensure proper, prompt and effective compliance with the provisions, which would pave the way for ameliorating the grievances of the mentally ill persons.
Cause Title: XXX v. State of Keral [CRL.MC NO. 428 OF 2023]
