IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4938 of 2010()
1. RASHEED,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.JOMY GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.4938 of 2010
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Dated this the 13th day of January, 2011.
ORDER
Petitioner is accused in C.P.No.33 of 2009 of the court of learned Judicial
First Class Magistrate-I, Ernakulam for offence punishable under Section 302 of
the Indian Penal Code (for short, “the IPC”). During the course of committal
proceedings it was brought to the notice of the learned Magistrate that
petitioner, being mentally retarded is unable to make his defence. Thereon
learned Magistrate conducted enquiry as provided under Section 328 of the
Code of Criminal Procedure(for short, “the Code”) and on finding that petitioner
is able to make his defence committed the case for trial to the court of learned
Sessions Judge as per Annexure-A7, order dated September 20, 2010.
Proceedings before the committal court and Annexure-A7, order are challenged
in this proceeding at the instance of petitioner. Learned counsel has contended
that it was mandatory to ascertain whether petitioner on account of mental
retardation is capable of making his defence, such enquiry has not been
conducted by appropriate authorities and hence proceedings before committal
court and Annexure-A7, order are vitiated. Learned counsel contends that
petitioner is entitled to have a fair trial which includes his ability to understand
the case against him and make a proper defence. Learned counsel has placed
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reliance on the decision in Madhavan Nair v. State of Kerala (1978 KLT
156) and the observations at page 159, in particular. I have heard learned
Public Prosecutor as well in the matter.
2. Charge against petitioner is one under Section 302 of the IPC. It is
stated that petitioner was staying at Snehanilayam which is an institution for
mentally challenged persons from 1984 to 1991. Annexure-A1 is the certificate
issued from the said institution stating so. That certificate also states that IQ of
petitioner shows that he is mentally challenged of moderate degree and that
(notwithstanding his biological age) his mental age is four and a half years.
Obviously in the light of the said situation learned Magistrate directed an enquiry
to be conducted into the mental capacity of petitioner to stand trial. He was
referred to a Civil Surgeon who suggested that his examination at Mental Health
Centre is required. Petitioner was referred to the Mental Health Centre. The
Assistant Surgeon attached to that institution, according to the petitioner without
conducting proper examination reported that petitioner is fit for trial. Petitioner
thereon filed C.M.P.No.2003 of 2009 to send him for further examination to the
Mental Health Centre. Learned Magistrate allowed that petition by Annexure-A2,
order dated October 21,2009. Before doing so, learned Magistrate has also
examined the Assistant Surgeon as CW1 and marked her report as Ext.C1.
Learned Magistrate was of the view that deposition of CW1 would show that she
had not conducted any medical test to determine mental state of petitioner and
instead, opinion was based on mere clinical observation and examination.
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Learned Magistrate thought that it is necessary to have a detailed study of the
mental state of petitioner, allowed C.M.P.No.2003 of 2009 and referred petitioner
to the Superintendent of Mental Health Centre, Thrissur. The latter was directed
to constitute a Medical Board consisting of a Neurologist, Psychiatrist and a
Psychologist to evaluate mental condition of petitioner. The Superintendent
was directed to file a report before the court after examination. Accordingly
petitioner was sent to the Medical Board constituted by the Superintendent of
Mental Health Centre and he was examined by that Board. The
Superintendent of Mental Health Centre submitted Annexure-A3, report dated
April 12, 2010 stating that physiological and psychological evaluation was done
“clinically” and that there is evidence of mild retardation. Petitioner was called for
a psychological testing of quantification of his IQ on 09.04.2010 but he was not
brought for that test. Based on the available materials, Superintendent opined
in Annexure-3 that “Mr. Rasheed is having mild mental retardations. There is no
evidence and another psychiatric syndrome or neurological abnormalities.” The
Superintendent was examined as CW2 (his deposition is Annexure-A4). Then
also he stated that Medical Board had examined petitioner on 05.04.2010 when
he was found to have mental retardation, an IQ test was arranged on 09.04.2010
but petitioner was not brought for that test. There was no symptoms of any
psychiatric illness or neurological abnormalities. He can understand the nature
of trial and has slight mental retardation. Witness stated that petitioner is not
insane and that sanity and mental retardation are different. Learned counsel
argued about the manner of diagnosis of mental retardation as per the latest
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edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)
and that three criteria must be met for a diagnosis of mental retardation: an IQ
below 70, significant limitations in two or more areas of adaptive behaviour (as
measured by an adaptive behaviour rating scale, ie., communication, self-help
skills, interpersonal skills and more) and evidence that the limitations became
apparent before the aged of 18.
3. Based on the opinion of Superintendent of Mental Health Centre,
learned Magistrate has passed Annexure-A6, order. Learned Magistrate opined
that concurrent findings in Exts.C1 and C2 are sufficient to arrive at the
conclusion that petitioner is sane and can understand the nature of trial and is fit
to stand trial. Though petitioner has mild retardation and his IQ is slightly low
C.M.P.No.1574 of 2010 filed by petitioner to send him for further test to the
Medical Board was not accepted. Following that, learned Magistrate has
passed Annexure-A7, order of committal. It is the said proceedings which are
under challenge as first above stated.
4. Though originally mental retardation was not a subject matter of
enquiry under Section 328 of the Code, that has been brought into the Statute
by Act 5 of 2009 with effect from 31.12.2009. Now as the position stands the
Magistrate is to conduct an enquiry whether an accused is mentally retarded as
well. Section 328 of the Code prescribes the procedure. Sub-section (1) of
Section 328 states that when a Magistrate holding an enquiry has reason to
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believe that the person against whom the enquiry is being held is of unsound
mind and consequently incapable of making his defence, the Magistrate shall
enquire into the fact of such unsoundness of mind and shall cause such person
to be examined by the Civil Surgeon of the district or such other Medical Officer
as the State Government may direct, and thereupon shall examine such
Surgeon or other officer as a witness and shall reduce the examination to writing.
Sub-section (1A) incorporated by Act 5 of 2009 as above stated, states that if
the Civil Surgeon finds the accused to be of unsound mind, he shall refer such
person to a Psychiatrist or Clinical Psychologist for care, treatment and
prognosis of the condition and the Psychiatrist or Clinical Psychologist as the
case may be shall inform the Magistrate whether the accused is suffering from
unsoundness of mind or “mental retardation”. It is pursuant to the said provision
that learned Magistrate has undertaken the enquiry in the present case. Now
the question is whether enquiry conducted and finding entered by learned
Magistrate would stand the test prescribed under Section 328 of the Code above
stated. Learned Magistrate was right in referring petitioner to the Medical Board
in the light of the in-perfect examination conducted by the Assistant Surgeon and
obtaining a report. But it is seen from Ext.C2 (Annexure-A3) and the statement
of CW2 (the Superintendent of Mental Health Centre) that though the Medical
Board wanted an IQ test to be conducted on 09.04.2010 but petitioner was not
made available for that test which meant that the IQ test was not conducted. In
otherwords, it was without conducting IQ test that the Superintendent of Medical
Health Centre opined in Annexure-A3 that mental retardation is mild and, in his
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evidence as CW2 it is stated that there was no symptom of any psychiatric
illness or neurological abnormalities and that he can understand the nature of
trial.
5. In Madhavan Nair v. State of Kerala referred to above learned
Judge observed:
“………….. Valuable rights have been
conferred on the accused under Ss.207 and 209 of
the Code and as stated earlier, he is entitled to free
copies of statements and documents referred to
therein and the Magistrate is bound, without delay to
furnish such statements and documents to the
accused. If the person accused of an offence is a
lunatic incapable of defending himself and
understanding what is happening in the court, how it
is possible for the Magistrate to comply with the
requirements of the salient provisions in Ss.207 and
208. Before action under S.209 is taken against an
accused, he is entitled to get copies of statements
and documents which give him notice of the case
which he has to meet. While passing an order
under S.209, the accused must know that he was
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being committed to the Court of Session. But all
these requirements can be complied with only in the
case of a person of sound mind and not of unsound
mind. …………”
In otherwords, the Magistrate must be satisfied from the enquiry he has
conducted that petitioner is capable of understanding things and making his
defence in a meaningful manner. It is only in such a situation, case could be
committed to the court of Sessions for trial. As I stated, one thing is lacking in
the present case, ie. quantification of the IQ of petitioner and an opinion based
on that. In such a situation it is doubtful whether petitioner is able to make his
defence in a meaningful manner. I consider that it is not fair to commit
petitioner for trial in such a doubtful situation. I do not forget that under Section
329 of the Code, learned Sessions Judge also has a similar power. But, going
by Sub-section (1) of that provision the said situation arises when the Sessions
Judge has reason to think at the trial (ie. after framing charge) that the person
concerned is of unsound mind. For the purpose of an effective and meaningful
framing of charge and trial, petitioner should be capable of making his
defence. Having regard to these matters I am inclined to think that committal
was not proper.
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Resultantly this petition is allowed and Annexures-A6 and A7, orders are
set aside. Learned Judicial First Class Magistrate-I, Ernakulam is directed to
conduct further enquiry into the matter as provided under Section 328 of the
Code by directing the Superintendent of Mental Health Centre to coduct a
detailed psychologic test for quantification of the IQ of petitioner as suggested
in Annexure-A3, certificate and based on that, to report whether petitioner is
capable of standing trial and pass appropriate consequential orders in the
matter.
THOMAS P.JOSEPH,
Judge.
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