CRIMINAL MISC. M NO.33238 OF 2004 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: December 03, 2008
Dimple @ Dimpu @ Gurcharan
.....Petitioner
VERSUS
State of Punjab
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Parveen Kumar, Advocate,
for the petitioner.
Mr. Mehardeep Singh, AAG, Punjab,
for the State.
****
RANJIT SINGH, J.
A sick man suffering from unsoundness of mind and
accused of an offence under Sections 302/323 IPC has filed this
petition through his father, being his natural guardian for quashing of
the proceedings in progress against him. Dimple @ Dimpu @
Gurcharan son of a poor labourer is an accused in an FIR No.187
dated 29.10.1998 and was facing trial before Additional Sessions
Judge (Adhoc), Patiala. His father has now filed this petition to
impugn an order passed by Additional Sessions Judge (Adhoc),
CRIMINAL MISC. M NO.33238 OF 2004 :{ 2 }:
summoning the witnesses to conclude the trial, though the accused-
petitioner continues to suffer from psychotic illness. Prayer is to
quash this order and proceed with the case in accordance with the
provisions governing the procedure of trial in those cases where the
accused person suffers from disease of unsoundness of mind.
The petition, which is bereft of much detail, would show
that the petitioner is being prosecuted for an offence under Section
302, 323 and a report under Section 173 Cr.P.C was filed in this
case. The father of the petitioner moved an application before the
Court to proceed against the petitioner under Section 329 Cr.P.C as
the accused was of unsound mind. On 4.2.2000, the Sessions Judge
directed that the petitioner be committed to custody at Mental
Hospital, Amritsar, for detailed examination and report. The Medical
Officer was specifically directed to opine if the accused was capable
of standing trial or not. Mental Hospital, Amritsar, submitted a report
dated 22.2.2000, stating that the petitioner was not fit to stand trial.
The trial was accordingly stayed.
Criminal Misc. No. 3086-M of 2000 came to be filed
before this Court, though it is not clear as to who and for what
purpose this petition was filed. This Court in a Misc. Application filed
in the said Criminal Misc. Petition directed that the Trial Court shall
periodically review the medical condition of the petitioner and his trial
shall commence whenever it is found that he is fit to stand the trial.
To comply with the direction of this Court, the petitioner was referred
to Civil Surgeon, Patiala, for medical check up, from where he was
referred to P.G.I., Chandigarh. Head of the Psychiatry Department at
PGI, Chandigarh gave his report on 11.5.2004 opining as under:-
CRIMINAL MISC. M NO.33238 OF 2004 :{ 3 }:
“On the basis of the history obtained, the psychological
tests and our own observations of the accused in the
ward, it is my opinion that he is suffering from chronic
psychotic illness most likely to be schizophrenia of
undifferentiated nature. It is quite likely that because of
unpredictable behaviour and uncontrolled
aggression, he was involved in the alleged incident
which led to the unfortunate death of the person for
which he has been charged under the Indian Penal
Code. However, it is my opinion that this was neither
deliberate nor intentional. Moreover, if we go by the
history then it is apparent that Dimple had been ill for
more than 2 years before the alleged incident of crime
took place.
We had offered treatment to Dimple but his father
because of his own limitations could not keep the patient
in the psychiatry ward as per our terms and conditions.
Therefore, it is my humble suggestion to the court that the
fact that the accused is mentally ill should be kept in mind
when deciding about him and if possible he should be
sent to a mental hospital for treatment. An appropriate
sentence of this nature should be considered.
If the court desires any clarification regarding the
condition of the accused, then I would be too happy to be
of service to the Hon’ble Court.”
After receipt of this report, Additional Sessions Judge
CRIMINAL MISC. M NO.33238 OF 2004 :{ 4 }:
(Adhoc), Patiala, fixed the trial of the petitioner for 19.7.2004 through
his order dated 15.5.2004. This order, directing the petitioner to face
trial despite the fact that he was found to be suffering from mental
disorder is impugned through the present Petition.
Insensitivity on the part of the Trial Judge is seen from the
impugned order. Though there was a clear opinion of the expert
before him that the petitioner was suffering from chronic psychotic
illness which was most likely to be schizophrenia of undifferentiated
nature, the Trial Court summoned the prosecution witnesses and
issued direction for commencing the prosecution of the petitioner.
The manner in which the Trial Court chose to adopt this course
would not commend me much. In the impugned order, the Trial
Judge has noticed that the psychotic report from PGI dated
11.5.2004 was received but went on to observe that it was for the
Trial Court to decide when the trial is to commence after periodical
view of the medical condition of the accused-petitioner. The Court
then recorded the statement of father of the petitioner, which is
reproduced in the impugned order. The father of the petitioner did
state before the court that he was looking after his son and getting a
regular treatment. He also stated that his son was being defended by
Parvinder Singla and Rameshwar Singla, Advocates. It was further
recorded through him that accused was taking food and water but
had no control about the call of nature and keeping in view the
documents showing treatment of the petitioner at PGI, the trial may
be continued. The opinion of the doctor received from PGI was also
reproduced in the order. This is the same opinion dated 11.5.2004 as
is noted above.
CRIMINAL MISC. M NO.33238 OF 2004 :{ 5 }:
The Court then noticed that from the available medical
opinion and having periodical review of the medical condition of the
petitioner, it was to be seen whether he is fit to stand trial or not.
Strangely, however, the Court noticed that the application filed by the
father of the petitioner under Section 329 Cr.P.C stood concluded in
view of the circumstances and the statement of Roshan Lal, father of
the petitioner and the medical opinion.
The Court then referred to earlier order dated 4.2.2000 in
which it was observed that the accused-petitioner if found suffering
from any specific mental disorder, then he should be given necessary
treatment and further observed that no such evidence of mental
disorder has been produced by the petitioner in compliance with the
order dated 4.2.2000. This seems to be a contradiction of a sort.
There was a clear medical opinion about the mental condition of the
petitioner given by specialist at PGI. The Court had made reference
to the same and had reproduced it in the impugned order. Still it is
mentioned in the impugned order that no evidence of mental disorder
has been produced by the petitioner.
Having done so, the Court, in my view, has resorted to a
procedure which may not be permissible. By recording observation
about the behaviour of the petitioner-accused during his presence
inside the Court, to come to a conclusion that he is fit to face trial,
would lead to doing injustice to the sick person. The Court has
recorded observation in the impugned order that during the
proceedings the petitioner alongwith his father remained seated in
the Court from 10.30 AM to 12.55 P.M. The activities, behaviour and
mental condition of the petitioner was noted by the Court and it is
CRIMINAL MISC. M NO.33238 OF 2004 :{ 6 }:
endorsed as a note in the impugned order, which reads as under:-
“Note: The father of accused Roshan Lal was asking the
accused if he want to take a glass of water and accused
stated in affirmative.
When the accused was asked by the court as to whether
he was feeling thirsty, the accused replied in affirmative
and then father of accused went out of the court to take
water.
While going out the accused was asked to sit in court by
his father, when the accused was accompanying to go out
of court room but accused immediately obeyed the order
of his father and he voluntarily sit in the court room
without any abnormal behaviour or un-toward incident.”
From the above observation, the Court felt satisfied that
the petitioner was fit to stand trial and further stated that the judicial
discretion has to be exercised. The Court accordingly directed that
the prosecution witness be summoned. The father of the petitioner
has approached this Court to impugn this order of the Trial Court.
While issuing notice, this Court stayed the further
proceedings before the Trial Court. The case was adjourned from
time to time. On 13.12.2006, this Court noticed that earlier opinion
about the sickness of the petitioner was given2-1/2 years ago and
accordingly felt the need of obtaining latest opinion about this aspect
from PGI, Chandigarh. The police was accordingly directed to take
the petitioner for examination by the head of the Psychiatric
Department, PGI. The medical report was then directed to be
produced before this Court. When the petitioner was found to have
CRIMINAL MISC. M NO.33238 OF 2004 :{ 7 }:
not been taken for further medical examination, the Court issued
direction to take the petitioner for this purpose on 1.10.2008. The
latest medical opinion, thus, obtained was placed on record and it
reveals that the petitioner continues to suffer from mental disorder.
The opinion of the doctor is reproduced below for ready reference:-
“It is my opinion that Dimple is still suffering from a
chronic psychotic illness and is not showing any
appreciable response to the medication that has been
prescribed. I suspect that medication, supervision is not
meaningful and that his drug compliance is poor.
Therefore, I am changing his medication to long acting
intramascular injection which will be given from the
Psychiatry OPD every two weeks. Giving him long acting
intramascular injection would necessitate his coming to
my clinic every fortnight and we will also ensure that he
gets the medication. I will continue to seek him in my
outpatient clinic and has given him appointment to come
for examination and follow up visit on 3rd November, 2008.
Thanking you, Yours sincerely, Sd/- 4.10.08 Dr.P.Kulhara,
Professor and Head Department of Psychiatry, PGIMER,
Chandigarh.”
It is in the above noted background that now the prayer of
the petitioner against the impugned order has been heard.
The facts, as noted above, would clearly show that the
petitioner concededly is found to be suffering from mental disease
from the year 2000, though its origin seems to be even two years
prior to the incident alleged against him as has been opined by the
CRIMINAL MISC. M NO.33238 OF 2004 :{ 8 }:
expert doctor who examined him in the year 2000. Thus, the
petitioner has concededly been sick for more than 10 years now. His
latest medical condition has also been obtained and is noted above.
Chapter XXV of the Code would regulate the procedure
required to be followed in such cases. Application, thus, was rightly
filed under Section 329 Cr.P.C on behalf of the petitioner but the trial
Court has unjustly failed to consider the plea of the petitioner in this
regard.
Chapter XXV begins with Section 328 Cr.P.C, which
provides procedure for enquiry by a Magistrate in regard to the fact of
unsoundness of mind. A Magistrate holding an enquiry, if has reason
to believe that the person before him is of unsound mind and
consequently incapable of making his defence, then he is enjoined
upon to enquire into such unsoundness of mind and shall cause such
person to be examined by Civil Surgeon of the District or such other
medical officer as the State Government may direct. Such Civil
Surgeon or Medical Officer is thereafter to be examined as a witness.
Pending this enquiry, the Magistrate may deal with such a person in
accordance with provisions of Section 330 Cr.P.C, which talks of
release of lunatic pending investigation or trial. If Magistrate is of
the opinion that person is of unsound mind, he is to record his finding
to that effect and then postpone the proceedings in the case. This
Section has been so amended from old Section so as to provide for
procedure to be followed in any inquiry where person against whom
inquiry is being held appears to be of unsound mind.
Section 329 Cr.P.C, on the other hand, provides for
procedure in case of person of unsound mind tried before Court. This
CRIMINAL MISC. M NO.33238 OF 2004 :{ 9 }:
Section makes it clear that in a trial before Magistrate or Court of
Sessions, if the accused appears to be of unsound mind and
consequently incapable of making his defence, then the Court shall,
in the first instance, try the fact of such unsoundness of mind and
incapacity and if satisfied in this regard, shall record a finding to that
effect and shall postpone further proceedings. This Section is similar
to Section 328 Cr.P.C., with this difference that latter relates to an
enquiry before a Magistrate, while this Section relates to trial before
Magistrate or Court of Sessions. However, both the Sections relate to
unsoundness of mind at the time of inquiry or trial and not at the time
of commission of offence. The distinction between incapacity at the
time of doing the act charged and incapacity at the time of trial is,
therefore, appreciable. Incapacity at the time of commission of
offence is dealt under Section 84 IPC. Section 84 IPC is a
substantive provision which excuses the offence whereas Sections
328 and 329 Cr.P.C. affects the procedure and postpone the trial.
Condition essential for applicability of the Sections is that it must
appear to the Court that accused brought before it is of unsound
mind. If it does so appear, then the fact has to be tried and decided
first before calling upon the accused to stand trial for the offence
charged. Word `appears’ imports lessor degree of probability than
proof. These provisions are mandatory and ought to be strictly
complied with. The issue of insanity is to be tried only where the
accused appears to be incapable of making his defence due to
mental infirmity. Magistrate is not to order inquiry on mere defence of
insanity, he must have `reasons to believe’ that the accused is of
unsound mind. A Magistrate can not act on his own opinion. He must
CRIMINAL MISC. M NO.33238 OF 2004 :{ 10 }:
have before him a statement of medical officer, who must be
examined. Where the Court decides that the accused is of unsound
mind and consequently incapable of making his defence, the trial is
to be postponed. As provided in Section 330 Cr.P.C., such a person
may be released on sufficient security being given that he shall be
properly taken care of and shall be prevented from doing injury to
himself or to any other person or for his appearance when required
before the Magistrate or the Court. The Court or the Magistrate is
also entitled to direct the accused to be detained in safe custody in
such a place and manner as it may think fit if it is of the view that the
bail should not be taken or sufficient security is not given. Section
331 Cr.P.C thereafter talks of resumption of enquiry or trial, when the
concerned persons ceases to be of unsound mind. Section 332
Cr.P.C prescribes a procedure to proceed with the trial or enquiry as
the case may be.
Since the requirement under these Sections is mandatory
and the Court is to try the fact of unsoundness of mind and capacity
of the accused at the first instance, the commencement of trial
without recording medical evidence or satisfying himself or recording
a finding on the material placed before him, will vitiate the trial.
(Gurjit Singh Vs. State of Punjab, 1986 Cri.L.J. 1505). Needless
to mention that the conclusion of the Court that the person is or is not
of unsound mind has to be on the material placed on record and any
decision without holding enquiry or without recording reasons would
be unsustainable. When the medical report is to the effect that the
accused is of unsound mind, it would be reasonable to infer that he is
incapable of making his defence. In such circumstances, the Court
CRIMINAL MISC. M NO.33238 OF 2004 :{ 11 }:
would almost be bound to afford the protection to him as he is
entitled to under law, being of unsound mind at the time of trial.
Unlike Sections 328 and 329 Cr.P.C., Section 333
Cr.P.C, prescribe procedure, when the accused person appears to
be of sound mind at the time of enquiry and trial but the Court finds
that he was incapable of knowing the nature of the act or that it was
wrong or contrary to law at the time when he committed the act by
reasons of unsoundness of mind. Thus, Sections 333 Cr.P.C and
334 Cr.P.C regulates the procedure, when the accused person is
found capable of making a defence but pleads that the act was
committed at the time when he, on account of reasons of
unsoundness of mind, was incapable of knowing the nature thereof.
In such a case, he is required to be acquitted on the ground of
unsoundness of mind. This is so provided by Section 334 Cr.P.C. At
the time of recording this finding, the Court is also to record a finding
and state specifically whether the accused person had committed the
act or not. Section 333, when read with Section 334 Cr.P.C, would
provide for acquittal of an accused where the Court is satisfied from
the evidence given before it that the accused was, at the time of
commission of crime by reasons of unsoundness of mind, incapable
of knowing the nature of the act or that it was wrong or contrary to
law. While acquitting the accused on the ground of he being insane,
the Court is to give a specific finding whether the accused had
committed the act charged. A provision has also been made for
detaining a person acquitted on such grounds in safe custody in the
form of Section 335 Cr.P.C.
The Law Commission in its 41st report had inter-alia
CRIMINAL MISC. M NO.33238 OF 2004 :{ 12 }:
observed that when there is a special verdict (guilty but insane) and
when there is a finding of unfitness to plead, the Court should have a
discretion not to make an order for detention if it considers on
medical evidence that it is safe for the public to order the immediate
release of the accused. It is in this background that mandatory
provisions of Section 471 Cr.P.C (Old Code) were recommended to
be replaced to leave some discretion to the Court. It was also
observed that the primary objection of detention order under Section
471 (old Code) is rehabilitation of the accused and to prevent any
trouble if he should relapse into insanity. It was felt that the accused
would receive more personal attention and care from his own
relatives or friends than in a lunatic asylum and where his relatives or
friends were ready to look after him and to undertake that he causes
no injury to himself or others, then there seems to be no reason why
the accused should not be released to their custody. This then
coupled with Section 336 to 339 is the total scheme in this regard.
These provisions are there to regulate the procedure in the present
case.
The facts, as noticed above, including the medical opinion
obtained in respect of the petitioner from time to time, would indicate
that both the situations envisaged under Sections 329 and 333
Cr.P.C. would arise in the present case. The petitioner is opined to
be suffering from chronic psychotic illness/ schizophrenia of
undifferentiated type. He continues to suffer this disease for the last
eight years. The latest report obtained from expert in this regard is
that the petitioner is still suffering from chronic psychotic illness and
is not showing any appreciable response to the medication. When
CRIMINAL MISC. M NO.33238 OF 2004 :{ 13 }:
examined by a doctor now in the year 2008, he was found to be very
dirty, filthy and disheveled state. He did not produce any speech
spontaneously. His answers to the questions were mostly irrelevant.
It is more than `appears’ situation and rather it is clear that the
petitioner is incapable of making his defence, if he is put to trial.
Thus, the procedure prescribed under Section 329 Cr.P.C would
need to be followed. The application was made on behalf of the
petitioner, which appears to have been neglected/ignored or it failed
to receive proper consideration for reasons best known to the Court.
How could the Court record that application filed by the father of the
petitioner under Section 329 Cr.P.C stands concluded in view of the
circumstances and statement of Roshan Lal. It was incumbent on the
Court to decide the application in terms of the law, provisions being
mandatory and responsibility in this regard being of the Court. As
already noticed, the provisions of these Sections are mandatory and
are ought to be strictly complied with as otherwise the proceedings
would get vitiated. Since this plea was raised before the Court, it
was required to try this fact of unsoundness of mind at the first
instance. The Court instead ordered commencement of the trial
without recording medical evidence or satisfying itself. Thus,
continuing with the case would lead to trial being vitiated. This is so
held in Gurjit Singh’s case (supra). How and why the Court chose
to ignore the opinion of a doctor, who clearly stated that the petitioner
is suffering from chronic psychotic disorder and proceeded with the
trial can really not be made out. Section 329 Cr.P.C., as already
noticed, uses the word `appears’ which is of a lesser degree of
probability than proof. The Court must have statement of medical
CRIMINAL MISC. M NO.33238 OF 2004 :{ 14 }:
officer and such officer must be examined as a mere written
certificate of the medical officer that an accused is of unsound mind
is not sufficient evidence of insanity. Such officer must be called and
examined as a witness. Rather, the Court chose to prefer its personal
observations recorded while it was busy attending to other cases as
well. It would really sound strange. It is palpably illegal. Such a
decision can not be based merely on information received out of
Court from Civil Surgeon or on answer to question put to the
accused. It is so held in Mehan Singh Vs. State, AIR 1954 Patna
129. It has to be based on evidence. Thus, the Court was bound to
examine the doctor as witness who had examined the petitioner and
if it was still to view that the petitioner was not of unsound mind on
the basis of some question and answer put to the petitioner, then
these were to be placed on record. This course adopted by the Court
to rely upon its own observations and failing to follow the mandatory
procedure under Section 329 Cr.P.C by ignoring the opinion of an
expert, which is required to be taken into consideration in terms of
the statutory provisions, certainly would not be legally sound mode to
dispose of the plea raised before the Court. This mode adopted by
the Court, as such, can not be accepted being opposed to the
statutory provisions.
The impugned order as such, can not be sustained and
the same is set-aside. The Trial Court would now take up the case
and decide the same in terms of the statutory provisions contained in
Chapter XXV of the Code of Criminal Procedure.
It may need to be observed that the opinion of the
Psychiatrist, which was obtained in the year 2000 and which is
CRIMINAL MISC. M NO.33238 OF 2004 :{ 15 }:
reproduced above and so too in the impugned order, would show that
the unpredictable behaviour and uncontrolled aggression is opined to
be a cause for involvement of the petitioner in the alleged incident,
which has led to an unfortunate death of the person, for which he
was charged and is facing this prosecution. It was further opined that
the act on his part was neither deliberate nor intentional. The
petitioner was found to be ill for more than two years before the
alleged incident. It is, thus, seen that the petitioner is opined to be
suffering from that form of insanity at the time of commission of
offence, which may make him incapable of knowing the nature and
quality of his act, when he committed the same. Though he is not
capable of defending himself at the trial but his act also has been
opined to have been committed on account of reasons of
unsoundness of mind, when he was incapable of knowing the nature
of the act or that it was wrong or contrary to law. The operation of the
provisions of Sections 333 and 334 Cr.P.C would, thus, also come
into play. The Court now while deciding the application of the
petitioner under Section 329 Cr.P.C., may have to go into this aspect
as well and after recording the relevant evidence in this regard, if it
comes to the conclusion that the petitioner suffered from that form of
insanity which would take him out of consequences of his act and the
commission of offence, it would be open for it to pass an order in
accordance with provisions of Section 334 Cr.P.C. As to when a
person can claim exemption from punishment for a criminal act on
the ground of insanity is given in Section 84 IPC. The onus to prove
this is on accused. If an accused succeeds in proving so, he is to be
acquitted.
CRIMINAL MISC. M NO.33238 OF 2004 :{ 16 }:
The present petition is accordingly disposed of. The
parties, through their counsel, are directed to appear before the Trial
Court on 15.1.2009.
December 03, 2008 ( RANJIT SINGH ) khurmi JUDGE