IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1746 of 2009()
1. SATHEESAN,AGED 56 YEARS,KALLINGAL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
For Petitioner :SRI.RAJIT
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/05/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 1746 OF 2009
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Dated 29th May 2009
O R D E R
This petition is filed by the accused in
Crime 845/2008 of Vatanappilly police station in
anticipation of an action by learned Magistrate, not
in accordance with the procedure provided under Code
of Criminal Procedure. According to the petitioner he
is suffering from mental illness evidenced by
Annexure-A certificate and when he surrenders before
the learned Magistrate, Magistrate is bound to
consider the application for bail as provided under
Chapter XXV of Code of Criminal Procedure and a
direction is to be issued as provided therein.
2. Learned counsel appearing for petitioner
and learned Public Prosecutor were heard.
3. Argument of the learned counsel
appearing for petitioner is that as the case is under
investigation stage, when the accused appears before
the Magistrate, he will proceed against just like
an ordinary accused and there is a likelihood of not
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proceeding as provided under Section 328 of Code of
Criminal Procedure and therefore a direction is to be
issued.
4. Chapter XXV of the Code of Criminal
Procedure contains the provisions as to accused
persons of unsound mind. Under Section 328, when 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, the Magistrate shall inquire
into the fact of such unsoundness of mind and shall
cause such person to be examined of the civil
surgeon of the district or such other medical
officer as the State Government may direct and if
the Magistrate is of the opinion that the said
person referred is of unsound mind and consequently
incapable of making his defence he shall record that
finding and shall postpone further proceedings.
Section 329 is the procedure to be complied at the
stage of trial. Section 330 provides for release of
persons of unsound mind pending investigation or
trial. Under Sub section 1, whenever a person is found
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under section 328 or 329 to be of unsound and
incapable of making his defence the Magistrate or the
court may release him 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, and for his appearance when
required before the Magistrate or court or such
officer as the Magistrate or court appoints in this
behalf. Section 328 is the provision to be applied
when the Magistrate is holding an inquiry and finds
that there is reason to believe that the person
against whom the enquiry is being held is of unsound
mind. Section 329 applies to a case where at the
time of trial, it appears to the Magistrate or court
that the person facing trial is unsound mind. If
Section 328 or 329 applies then Magistrate is bound
to proceed under Section 330 of Code of Criminal
Procedure. In this case the Magistrate is neither
holding a trial or an inquiry. If so, Section 328 and
330 of Code of Criminal Procedure do not apply at
this stage. I do not find any reason to hold that the
Magistrate will not proceed in accordance with law. In
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such circumstances, I find no reason to give any
direction as sought for.
Petition dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.