{"id":177135,"date":"2008-12-03T00:00:00","date_gmt":"2008-12-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dimple-dimpu-gurcharan-vs-state-of-punjab-on-3-december-2008"},"modified":"2015-10-14T05:20:27","modified_gmt":"2015-10-13T23:50:27","slug":"dimple-dimpu-gurcharan-vs-state-of-punjab-on-3-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dimple-dimpu-gurcharan-vs-state-of-punjab-on-3-december-2008","title":{"rendered":"Dimple @ Dimpu @ Gurcharan vs State Of Punjab on 3 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Dimple @ Dimpu @ Gurcharan vs State Of Punjab on 3 December, 2008<\/div>\n
CRIMINAL MISC. M NO.33238 OF 2004                                    :{ 1 }:\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                 CHANDIGARH\n\n\n                    DATE OF DECISION: December 03, 2008\n\n\n\n             Dimple @ Dimpu @ Gurcharan\n\n                                                             .....Petitioner\n\n                           VERSUS\n\n             State of Punjab\n\n                                                              ....Respondent\n\n\n\nCORAM:- HON'BLE MR.JUSTICE RANJIT SINGH\n\n1. Whether Reporters of local papers may be allowed to see the judgement?\n2. To be referred to the Reporters or not?\n3. Whether the judgment should be reported in the Digest?\n\n\n\nPRESENT:             Mr. Parveen Kumar, Advocate,\n                     for the petitioner.\n\n                     Mr. Mehardeep Singh, AAG, Punjab,\n                     for the State.\n\n                           ****\n\nRANJIT SINGH, J.\n<\/pre>\n
             A sick man suffering from unsoundness of mind and<\/p>\n
accused of an offence under Sections 302\/323 IPC has filed this<\/p>\n
petition through his father, being his natural guardian for quashing of<\/p>\n
the proceedings in progress against him.                 Dimple @ Dimpu @<\/p>\n
Gurcharan son of a poor labourer is an accused in an FIR No.187<\/p>\n
dated 29.10.1998 and was facing trial before Additional Sessions<\/p>\n
Judge (Adhoc), Patiala. His father has now filed this petition to<\/p>\n
impugn an order passed by Additional Sessions Judge (Adhoc),
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 2 }:\n<\/p>\n
summoning the witnesses to conclude the trial, though the accused-<\/p>\n
petitioner continues to suffer from psychotic illness. Prayer is to<\/p>\n
quash this order and proceed with the case in accordance with the<\/p>\n
provisions governing the procedure of trial in those cases where the<\/p>\n
accused person suffers from disease of unsoundness of mind.<\/p>\n
           The petition, which is bereft of much detail, would show<\/p>\n
that the petitioner is being prosecuted for an offence under Section<\/p>\n
302, 323 and a report under Section 173 Cr.P.C was filed in this<\/p>\n
case. The father of the petitioner moved an application before the<\/p>\n
Court to proceed against the petitioner under Section 329 Cr.P.C as<\/p>\n
the accused was of unsound mind. On 4.2.2000, the Sessions Judge<\/p>\n
directed that the petitioner be committed to custody at Mental<\/p>\n
Hospital, Amritsar, for detailed examination and report. The Medical<\/p>\n
Officer was specifically directed to opine if the accused was capable<\/p>\n
of standing trial or not. Mental Hospital, Amritsar, submitted a report<\/p>\n
dated 22.2.2000, stating that the petitioner was not fit to stand trial.<\/p>\n
The trial was accordingly stayed.\n<\/p>\n
           Criminal Misc. No. 3086-M of 2000 came to be filed<\/p>\n
before this Court, though it is not clear as to who and for what<\/p>\n
purpose this petition was filed. This Court in a Misc. Application filed<\/p>\n
in the said Criminal Misc. Petition directed that the Trial Court shall<\/p>\n
periodically review the medical condition of the petitioner and his trial<\/p>\n
shall commence whenever it is found that he is fit to stand the trial.<\/p>\n
To comply with the direction of this Court, the petitioner was referred<\/p>\n
to Civil Surgeon, Patiala, for medical check up, from where he was<\/p>\n
referred to P.G.I., Chandigarh. Head of the Psychiatry Department at<\/p>\n
PGI, Chandigarh gave his report on 11.5.2004 opining as under:-\n<\/p>\n
 CRIMINAL MISC. M NO.33238 OF 2004                          :{ 3 }:\n<\/p>\n
           “On the basis of the history obtained, the psychological<\/p>\n
           tests and our own observations of the accused in the<\/p>\n
           ward, it is my opinion that he is suffering from chronic<\/p>\n
           psychotic illness most likely to be schizophrenia of<\/p>\n
           undifferentiated nature. It is quite likely that because of<\/p>\n
           unpredictable       behaviour       and      uncontrolled<\/p>\n
           aggression, he was involved in the alleged incident<\/p>\n
           which led to the unfortunate death of the person for<\/p>\n
           which he has been charged under the Indian Penal<\/p>\n
           Code. However, it is my opinion that this was neither<\/p>\n
           deliberate nor intentional. Moreover, if we go by the<\/p>\n
           history then it is apparent that Dimple had been ill for<\/p>\n
           more than 2 years before the alleged incident of crime<\/p>\n
           took place.\n<\/p>\n
           We had offered treatment to Dimple but his father<\/p>\n
           because of his own limitations could not keep the patient<\/p>\n
           in the psychiatry ward as per our terms and conditions.<\/p>\n
           Therefore, it is my humble suggestion to the court that the<\/p>\n
           fact that the accused is mentally ill should be kept in mind<\/p>\n
           when deciding about him and if possible he should be<\/p>\n
           sent to a mental hospital for treatment. An appropriate<\/p>\n
           sentence of this nature should be considered.\n<\/p>\n
           If the court desires any clarification regarding the<\/p>\n
           condition of the accused, then I would be too happy to be<\/p>\n
           of service to the Hon’ble Court.”\n<\/p>\n
           After receipt of this report, Additional Sessions Judge
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 4 }:\n<\/p>\n
(Adhoc), Patiala, fixed the trial of the petitioner for 19.7.2004 through<\/p>\n
his order dated 15.5.2004. This order, directing the petitioner to face<\/p>\n
trial despite the fact that he was found to be suffering from mental<\/p>\n
disorder is impugned through the present Petition.<\/p>\n
           Insensitivity on the part of the Trial Judge is seen from the<\/p>\n
impugned order. Though there was a clear opinion of the expert<\/p>\n
before him that the petitioner was suffering from chronic psychotic<\/p>\n
illness which was most likely to be schizophrenia of undifferentiated<\/p>\n
nature, the Trial Court summoned the prosecution witnesses and<\/p>\n
issued direction for commencing the prosecution of the petitioner.<\/p>\n
The manner in which the Trial Court chose to adopt this course<\/p>\n
would not commend me much. In the impugned order, the Trial<\/p>\n
Judge has noticed that the psychotic          report from PGI dated<\/p>\n
11.5.2004 was received but went on to observe that it was for the<\/p>\n
Trial Court to decide when the trial is to commence after periodical<\/p>\n
view of the medical condition of the accused-petitioner. The Court<\/p>\n
then recorded the statement of father of the petitioner, which is<\/p>\n
reproduced in the impugned order. The father of the petitioner did<\/p>\n
state before the court that he was looking after his son and getting a<\/p>\n
regular treatment. He also stated that his son was being defended by<\/p>\n
Parvinder Singla and Rameshwar Singla, Advocates. It was further<\/p>\n
recorded through him that accused was taking food and water but<\/p>\n
had no control about the call of nature and keeping in view the<\/p>\n
documents showing treatment of the petitioner at PGI, the trial may<\/p>\n
be continued. The opinion of the doctor received from PGI was also<\/p>\n
reproduced in the order. This is the same opinion dated 11.5.2004 as<\/p>\n
is noted above.\n<\/p>\n
 CRIMINAL MISC. M NO.33238 OF 2004                          :{ 5 }:\n<\/p>\n
            The Court then noticed that from the available medical<\/p>\n
opinion and having periodical review of the medical condition of the<\/p>\n
petitioner, it was to be seen whether he is fit to stand trial or not.<\/p>\n
Strangely, however, the Court noticed that the application filed by the<\/p>\n
father of the petitioner under Section 329 Cr.P.C stood concluded in<\/p>\n
view of the circumstances and the statement of Roshan Lal, father of<\/p>\n
the petitioner and the medical opinion.\n<\/p>\n
           The Court then referred to earlier order dated 4.2.2000 in<\/p>\n
which it was observed that the accused-petitioner if found suffering<\/p>\n
from any specific mental disorder, then he should be given necessary<\/p>\n
treatment and further observed that no such evidence of mental<\/p>\n
disorder has been produced by the petitioner in compliance with the<\/p>\n
order dated 4.2.2000. This seems to be a contradiction of a sort.<\/p>\n
There was a clear medical opinion about the mental condition of the<\/p>\n
petitioner given by specialist at PGI. The Court had made reference<\/p>\n
to the same and had reproduced it in the impugned order. Still it is<\/p>\n
mentioned in the impugned order that no evidence of mental disorder<\/p>\n
has been produced by the petitioner.\n<\/p>\n
           Having done so, the Court, in my view, has resorted to a<\/p>\n
procedure which may not be permissible. By recording observation<\/p>\n
about the behaviour of the petitioner-accused during his presence<\/p>\n
inside the Court, to come to a conclusion that he is fit to face trial,<\/p>\n
would lead to doing injustice to the sick person. The Court has<\/p>\n
recorded observation in the impugned order that during the<\/p>\n
proceedings the petitioner alongwith his father remained seated in<\/p>\n
the Court from 10.30 AM to 12.55 P.M. The activities, behaviour and<\/p>\n
mental condition of the petitioner was noted by the Court and it is
\n CRIMINAL MISC. M NO.33238 OF 2004                            :{ 6 }:\n<\/p>\n
endorsed as a note in the impugned order, which reads as under:-<\/p>\n
            “Note: The father of accused Roshan Lal was asking the<\/p>\n
            accused if he want to take a glass of water and accused<\/p>\n
            stated in affirmative.\n<\/p><\/blockquote>\n
            When the accused was asked by the court as to whether<\/p>\n
            he was feeling thirsty, the accused replied in affirmative<\/p>\n
            and then father of accused went out of the court to take<\/p>\n
            water.\n<\/p><\/blockquote>\n
            While going out the accused was asked to sit in court by<\/p>\n
            his father, when the accused was accompanying to go out<\/p>\n
            of court room but accused immediately obeyed the order<\/p>\n
            of his father and he voluntarily sit in the court room<\/p>\n
            without any abnormal behaviour or un-toward incident.”<\/p><\/blockquote>\n
            From the above observation, the Court felt satisfied that<\/p>\n
the petitioner was fit to stand trial and further stated that the judicial<\/p>\n
discretion has to be exercised. The Court accordingly directed that<\/p>\n
the prosecution witness be summoned. The father of the petitioner<\/p>\n
has approached this Court to impugn this order of the Trial Court.<\/p>\n
            While issuing notice, this Court stayed the further<\/p>\n
proceedings before the Trial Court. The case was adjourned from<\/p>\n
time to time. On 13.12.2006, this Court noticed that earlier opinion<\/p>\n
about the sickness of the petitioner was given2-1\/2 years ago and<\/p>\n
accordingly felt the need of obtaining latest opinion about this aspect<\/p>\n
from PGI, Chandigarh. The police was accordingly directed to take<\/p>\n
the petitioner for examination by the head of the Psychiatric<\/p>\n
Department, PGI. The medical report was then directed to be<\/p>\n
produced before this Court. When the petitioner was found to have
\n CRIMINAL MISC. M NO.33238 OF 2004                        :{ 7 }:\n<\/p>\n
not been taken for further medical examination, the Court issued<\/p>\n
direction to take the petitioner for this purpose on 1.10.2008. The<\/p>\n
latest medical opinion, thus, obtained was placed on record and it<\/p>\n
reveals that the petitioner continues to suffer from mental disorder.<\/p>\n
The opinion of the doctor is reproduced below for ready reference:-<\/p>\n
           “It is my opinion that Dimple is still suffering from a<\/p>\n
           chronic psychotic illness and is not showing any<\/p>\n
           appreciable response to the medication that has been<\/p>\n
           prescribed. I suspect that medication, supervision is not<\/p>\n
           meaningful and that his drug compliance is poor.<\/p>\n
           Therefore, I am changing his medication to long acting<\/p>\n
           intramascular injection which will be given from the<\/p>\n
           Psychiatry OPD every two weeks. Giving him long acting<\/p>\n
           intramascular injection would necessitate his coming to<\/p>\n
           my clinic every fortnight and we will also ensure that he<\/p>\n
           gets the medication. I will continue to seek him in my<\/p>\n
           outpatient clinic and has given him appointment to come<\/p>\n
           for examination and follow up visit on 3rd November, 2008.<\/p>\n
           Thanking you, Yours sincerely, Sd\/- 4.10.08 Dr.P.Kulhara,<\/p>\n
           Professor and Head Department of Psychiatry, PGIMER,<\/p>\n
           Chandigarh.”<\/p><\/blockquote>\n
           It is in the above noted background that now the prayer of<\/p>\n
the petitioner against the impugned order has been heard.<\/p>\n
           The facts, as noted above, would clearly show that the<\/p>\n
petitioner concededly is found to be suffering from mental disease<\/p>\n
from the year 2000, though its origin seems to be even two years<\/p>\n
prior to the incident alleged against him as has been opined by the
\n CRIMINAL MISC. M NO.33238 OF 2004                          :{ 8 }:\n<\/p>\n
expert doctor who examined him in the year 2000. Thus, the<\/p>\n
petitioner has concededly been sick for more than 10 years now. His<\/p>\n
latest medical condition has also been obtained and is noted above.<\/p>\n
           Chapter XXV of the Code would regulate the procedure<\/p>\n
required to be followed in such cases. Application, thus, was rightly<\/p>\n
filed under Section 329 Cr.P.C on behalf of the petitioner but the trial<\/p>\n
Court has unjustly failed to consider the plea of the petitioner in this<\/p>\n
regard.\n<\/p>\n
           Chapter XXV begins with Section 328 Cr.P.C, which<\/p>\n
provides procedure for enquiry by a Magistrate in regard to the fact of<\/p>\n
unsoundness of mind. A Magistrate holding an enquiry, if has reason<\/p>\n
to believe that the person before him is of unsound mind and<\/p>\n
consequently incapable of making his defence, then he is enjoined<\/p>\n
upon to enquire into such unsoundness of mind and shall cause such<\/p>\n
person to be examined by Civil Surgeon of the District or such other<\/p>\n
medical officer as the State Government may direct. Such Civil<\/p>\n
Surgeon or Medical Officer is thereafter to be examined as a witness.<\/p>\n
Pending this enquiry, the Magistrate may deal with such a person in<\/p>\n
accordance with provisions of Section 330 Cr.P.C, which talks of<\/p>\n
release of lunatic pending investigation or trial.   If Magistrate is of<\/p>\n
the opinion that person is of unsound mind, he is to record his finding<\/p>\n
to that effect and then postpone the proceedings in the case. This<\/p>\n
Section has been so amended from old Section so as to provide for<\/p>\n
procedure to be followed in any inquiry where person against whom<\/p>\n
inquiry is being held appears to be of unsound mind.<\/p>\n
           Section 329 Cr.P.C, on the other hand, provides for<\/p>\n
procedure in case of person of unsound mind tried before Court. This
\n CRIMINAL MISC. M NO.33238 OF 2004                            :{ 9 }:\n<\/p>\n
Section makes it clear that in a trial before Magistrate or Court of<\/p>\n
Sessions, if the accused appears to be of unsound mind and<\/p>\n
consequently incapable of making his defence, then the Court shall,<\/p>\n
in the first instance, try the fact of such unsoundness of mind and<\/p>\n
incapacity and if satisfied in this regard, shall record a finding to that<\/p>\n
effect and shall postpone further proceedings. This Section is similar<\/p>\n
to Section 328 Cr.P.C., with this difference that latter relates to an<\/p>\n
enquiry before a Magistrate, while this Section relates to trial before<\/p>\n
Magistrate or Court of Sessions. However, both the Sections relate to<\/p>\n
unsoundness of mind at the time of inquiry or trial and not at the time<\/p>\n
of commission of offence. The distinction between incapacity at the<\/p>\n
time of doing the act charged and incapacity at the time of trial is,<\/p>\n
therefore, appreciable. Incapacity at the time of commission of<\/p>\n
offence is dealt under Section 84 IPC. Section 84 IPC is a<\/p>\n
substantive provision which excuses the offence whereas Sections<\/p>\n
328 and 329 Cr.P.C. affects the procedure and postpone the trial.<\/p>\n
Condition essential for applicability of the Sections is that it must<\/p>\n
appear to the Court that accused brought before it is of unsound<\/p>\n
mind. If it does so appear, then the fact has to be tried and decided<\/p>\n
first before calling upon the accused to stand trial for the offence<\/p>\n
charged. Word `appears’ imports lessor degree of probability than<\/p>\n
proof. These provisions are mandatory and ought to be strictly<\/p>\n
complied with. The issue of insanity is to be tried only where the<\/p>\n
accused appears to be incapable of making his defence due to<\/p>\n
mental infirmity. Magistrate is not to order inquiry on mere defence of<\/p>\n
insanity, he must have `reasons to believe’ that the accused is of<\/p>\n
unsound mind. A Magistrate can not act on his own opinion. He must
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 10 }:\n<\/p>\n
have before him a statement of medical officer, who must be<\/p>\n
examined. Where the Court decides that the accused is of unsound<\/p>\n
mind and consequently incapable of making his defence, the trial is<\/p>\n
to be postponed. As provided in Section 330 Cr.P.C., such a person<\/p>\n
may be released on sufficient security being given that he shall be<\/p>\n
properly taken care of and shall be prevented from doing injury to<\/p>\n
himself or to any other person or for his appearance when required<\/p>\n
before the Magistrate or the Court. The Court or the Magistrate is<\/p>\n
also entitled to direct the accused to be detained in safe custody in<\/p>\n
such a place and manner as it may think fit if it is of the view that the<\/p>\n
bail should not be taken or sufficient security is not given. Section<\/p>\n
331 Cr.P.C thereafter talks of resumption of enquiry or trial, when the<\/p>\n
concerned persons ceases to be of unsound mind. Section 332<\/p>\n
Cr.P.C prescribes a procedure to proceed with the trial or enquiry as<\/p>\n
the case may be.\n<\/p>\n
           Since the requirement under these Sections is mandatory<\/p>\n
and the Court is to try the fact of unsoundness of mind and capacity<\/p>\n
of the accused at the first instance, the commencement of trial<\/p>\n
without recording medical evidence or satisfying himself or recording<\/p>\n
a finding on the material placed before him, will vitiate the trial.<\/p>\n
(Gurjit Singh Vs. State of Punjab, 1986 Cri.L.J. 1505). Needless<\/p>\n
to mention that the conclusion of the Court that the person is or is not<\/p>\n
of unsound mind has to be on the material placed on record and any<\/p>\n
decision without holding enquiry or without recording reasons would<\/p>\n
be unsustainable. When the medical report is to the effect that the<\/p>\n
accused is of unsound mind, it would be reasonable to infer that he is<\/p>\n
incapable of making his defence. In such circumstances, the Court
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 11 }:\n<\/p>\n
would almost be bound to afford the protection to him as he is<\/p>\n
entitled to under law, being of unsound mind at the time of trial.<\/p>\n
           Unlike Sections 328 and 329 Cr.P.C., Section 333<\/p>\n
Cr.P.C, prescribe procedure, when the accused person appears to<\/p>\n
be of sound mind at the time of enquiry and trial but the Court finds<\/p>\n
that he was incapable of knowing the nature of the act or that it was<\/p>\n
wrong or contrary to law at the time when he committed the act by<\/p>\n
reasons of unsoundness of mind. Thus, Sections 333 Cr.P.C and<\/p>\n
334 Cr.P.C regulates the procedure, when the accused person is<\/p>\n
found capable of making a defence but pleads that the act was<\/p>\n
committed at the time when he, on account of reasons of<\/p>\n
unsoundness of mind, was incapable of knowing the nature thereof.<\/p>\n
In such a case, he is required to be acquitted on the ground of<\/p>\n
unsoundness of mind. This is so provided by Section 334 Cr.P.C. At<\/p>\n
the time of recording this finding, the Court is also to record a finding<\/p>\n
and state specifically whether the accused person had committed the<\/p>\n
act or not. Section 333, when read with Section 334 Cr.P.C, would<\/p>\n
provide for acquittal of an accused where the Court is satisfied from<\/p>\n
the evidence given before it that the accused was, at the time of<\/p>\n
commission of crime by reasons of unsoundness of mind, incapable<\/p>\n
of knowing the nature of the act or that it was wrong or contrary to<\/p>\n
law. While acquitting the accused on the ground of he being insane,<\/p>\n
the Court is to give a specific finding whether the accused had<\/p>\n
committed the act charged. A provision has also been made for<\/p>\n
detaining a person acquitted on such grounds in safe custody in the<\/p>\n
form of Section 335 Cr.P.C.\n<\/p>\n
           The Law Commission in its 41st report had inter-alia
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 12 }:\n<\/p>\n
observed that when there is a special verdict (guilty but insane) and<\/p>\n
when there is a finding of unfitness to plead, the Court should have a<\/p>\n
discretion not to make an order for detention if it considers on<\/p>\n
medical evidence that it is safe for the public to order the immediate<\/p>\n
release of the accused.      It is in this background that mandatory<\/p>\n
provisions of Section 471 Cr.P.C (Old Code) were recommended to<\/p>\n
be replaced to leave some discretion to the Court. It was also<\/p>\n
observed that the primary objection of detention order under Section<\/p>\n
471 (old Code) is rehabilitation of the accused and to prevent any<\/p>\n
trouble if he should relapse into insanity. It was felt that the accused<\/p>\n
would receive more personal attention and care from his own<\/p>\n
relatives or friends than in a lunatic asylum and where his relatives or<\/p>\n
friends were ready to look after him and to undertake that he causes<\/p>\n
no injury to himself or others, then there seems to be no reason why<\/p>\n
the accused should not be released to their custody. This then<\/p>\n
coupled with Section 336 to 339 is the total scheme in this regard.<\/p>\n
These provisions are there to regulate the procedure in the present<\/p>\n
case.\n<\/p>\n
           The facts, as noticed above, including the medical opinion<\/p>\n
obtained in respect of the petitioner from time to time, would indicate<\/p>\n
that both the situations envisaged under Sections 329 and 333<\/p>\n
Cr.P.C. would arise in the present case. The petitioner is opined to<\/p>\n
be suffering from chronic psychotic illness\/ schizophrenia of<\/p>\n
undifferentiated type. He continues to suffer this disease for the last<\/p>\n
eight years. The latest report obtained from expert in this regard is<\/p>\n
that the petitioner is still suffering from chronic psychotic illness and<\/p>\n
is not showing any appreciable response to the medication. When
\n CRIMINAL MISC. M NO.33238 OF 2004                           :{ 13 }:\n<\/p>\n
examined by a doctor now in the year 2008, he was found to be very<\/p>\n
dirty, filthy and disheveled state. He did not produce any speech<\/p>\n
spontaneously. His answers to the questions were mostly irrelevant.<\/p>\n
It is more than `appears’ situation and rather it is clear that the<\/p>\n
petitioner is incapable of making his defence, if he is put to trial.<\/p>\n
Thus, the procedure prescribed under Section 329 Cr.P.C would<\/p>\n
need to be followed. The application was made on behalf of the<\/p>\n
petitioner, which appears to have been neglected\/ignored or it failed<\/p>\n
to receive proper consideration for reasons best known to the Court.<\/p>\n
How could the Court record that application filed by the father of the<\/p>\n
petitioner under Section 329 Cr.P.C stands concluded in view of the<\/p>\n
circumstances and statement of Roshan Lal. It was incumbent on the<\/p>\n
Court to decide the application in terms of the law, provisions being<\/p>\n
mandatory and responsibility in this regard being of the Court.        As<\/p>\n
already noticed, the provisions of these Sections are mandatory and<\/p>\n
are ought to be strictly complied with as otherwise the proceedings<\/p>\n
would get vitiated. Since this plea was raised before the Court, it<\/p>\n
was required to try this fact of unsoundness of mind at the first<\/p>\n
instance. The Court instead ordered commencement of the trial<\/p>\n
without recording medical evidence or satisfying itself. Thus,<\/p>\n
continuing with the case would lead to trial being vitiated. This is so<\/p>\n
held in Gurjit Singh’s case (supra). How and why the Court chose<\/p>\n
to ignore the opinion of a doctor, who clearly stated that the petitioner<\/p>\n
is suffering from chronic psychotic disorder and proceeded with the<\/p>\n
trial can really not be made out. Section 329 Cr.P.C., as already<\/p>\n
noticed, uses the word `appears’ which is of a lesser degree of<\/p>\n
probability than proof. The Court must have statement of medical
\n CRIMINAL MISC. M NO.33238 OF 2004                          :{ 14 }:\n<\/p>\n
officer and such officer must be examined as a mere written<\/p>\n
certificate of the medical officer that an accused is of unsound mind<\/p>\n
is not sufficient evidence of insanity. Such officer must be called and<\/p>\n
examined as a witness. Rather, the Court chose to prefer its personal<\/p>\n
observations recorded while it was busy attending to other cases as<\/p>\n
well. It would really sound strange. It is   palpably illegal. Such a<\/p>\n
decision can not be based merely on information received out of<\/p>\n
Court from Civil Surgeon or on answer to question put to the<\/p>\n
accused. It is so held in Mehan Singh Vs. State, AIR 1954 Patna<\/p>\n
129. It has to be based on evidence. Thus, the Court was bound to<\/p>\n
examine the doctor as witness who had examined the petitioner and<\/p>\n
if it was still to view that the petitioner was not of unsound mind on<\/p>\n
the basis of some question and answer put to the petitioner, then<\/p>\n
these were to be placed on record. This course adopted by the Court<\/p>\n
to rely upon its own observations and failing to follow the mandatory<\/p>\n
procedure under Section 329 Cr.P.C by ignoring the opinion of an<\/p>\n
expert, which is required to be taken into consideration in terms of<\/p>\n
the statutory provisions, certainly would not be legally sound mode to<\/p>\n
dispose of the plea raised before the Court. This mode adopted by<\/p>\n
the Court, as such, can not be accepted being opposed to the<\/p>\n
statutory provisions.\n<\/p>\n
           The impugned order as such, can not be sustained and<\/p>\n
the same is set-aside. The Trial Court would now take up the case<\/p>\n
and decide the same in terms of the statutory provisions contained in<\/p>\n
Chapter XXV of the Code of Criminal Procedure.\n<\/p>\n
             It may need to be observed that the opinion of the<\/p>\n
Psychiatrist, which was obtained in the year 2000 and which is
\n CRIMINAL MISC. M NO.33238 OF 2004                          :{ 15 }:\n<\/p>\n
reproduced above and so too in the impugned order, would show that<\/p>\n
the unpredictable behaviour and uncontrolled aggression is opined to<\/p>\n
be a cause for involvement of the petitioner in the alleged incident,<\/p>\n
which has led to an unfortunate death of the person, for which he<\/p>\n
was charged and is facing this prosecution. It was further opined that<\/p>\n
the act on his part was neither deliberate nor intentional. The<\/p>\n
petitioner was found to be ill for more than two years before the<\/p>\n
alleged incident. It is, thus, seen that the petitioner is opined to be<\/p>\n
suffering from that form of insanity at the time of commission of<\/p>\n
offence, which may make him incapable of knowing the nature and<\/p>\n
quality of his act, when he committed the same. Though he is not<\/p>\n
capable of defending himself at the trial but his act also has been<\/p>\n
opined to have been committed on account of reasons of<\/p>\n
unsoundness of mind, when he was incapable of knowing the nature<\/p>\n
of the act or that it was wrong or contrary to law. The operation of the<\/p>\n
provisions of Sections 333 and 334 Cr.P.C would, thus, also come<\/p>\n
into play. The Court now while deciding the application of the<\/p>\n
petitioner under Section 329 Cr.P.C., may have to go into this aspect<\/p>\n
as well and after recording the relevant evidence in this regard, if it<\/p>\n
comes to the conclusion that the petitioner suffered from that form of<\/p>\n
insanity which would take him out of consequences of his act and the<\/p>\n
commission of offence, it would be open for it to pass an order in<\/p>\n
accordance with provisions of Section 334 Cr.P.C. As to when a<\/p>\n
person can claim exemption from punishment for a criminal act on<\/p>\n
the ground of insanity is given in Section 84 IPC. The onus to prove<\/p>\n
this is on accused. If an accused succeeds in proving so, he is to be<\/p>\n
acquitted.\n<\/p>\n
 CRIMINAL MISC. M NO.33238 OF 2004                          :{ 16 }:\n<\/p>\n
           The present petition is accordingly disposed of. The<\/p>\n
parties, through their counsel, are directed to appear before the Trial<\/p>\n
Court on 15.1.2009.\n<\/p>\n<\/p>\n
December 03, 2008                              ( RANJIT SINGH )\nkhurmi                                             JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Dimple @ Dimpu @ Gurcharan vs State Of Punjab on 3 December, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-177135","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDimple @ Dimpu @ Gurcharan vs State Of Punjab on 3 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dimple-dimpu-gurcharan-vs-state-of-punjab-on-3-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dimple @ Dimpu @ Gurcharan vs State Of Punjab on 3 December, 2008 - 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