{"id":186591,"date":"2011-01-13T00:00:00","date_gmt":"2011-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rasheed-vs-state-of-kerala-on-13-january-2011"},"modified":"2019-01-03T10:42:11","modified_gmt":"2019-01-03T05:12:11","slug":"rasheed-vs-state-of-kerala-on-13-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rasheed-vs-state-of-kerala-on-13-january-2011","title":{"rendered":"Rasheed vs State Of Kerala on 13 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rasheed vs State Of Kerala on 13 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.MC.No. 4938 of 2010()\n\n\n1. RASHEED,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.JOMY GEORGE\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :13\/01\/2011\n\n O R D E R\n                             THOMAS P. JOSEPH, J.\n                            --------------------------------------\n                             Crl.M.C. No.4938 of 2010\n                            --------------------------------------\n                     Dated this the 13th day of January, 2011.\n\n                                         ORDER\n<\/pre>\n
       Petitioner is accused in C.P.No.33 of 2009 of the court of learned Judicial<\/p>\n
First Class Magistrate-I, Ernakulam for offence punishable under Section 302 of<\/p>\n
the Indian Penal Code (for short, “the IPC”). During the course of committal<\/p>\n
proceedings it was brought to the notice                 of the learned Magistrate that<\/p>\n
petitioner, being mentally retarded is unable to make his defence. Thereon<\/p>\n
learned Magistrate conducted enquiry as provided under Section 328 of the<\/p>\n
Code of Criminal Procedure(for short, “the Code”) and on finding that petitioner<\/p>\n
is able to make his defence committed the case for trial to the court of learned<\/p>\n
Sessions Judge as per Annexure-A7, order dated September 20, 2010.<\/p>\n
Proceedings before the committal court and Annexure-A7, order are challenged<\/p>\n
in this proceeding at the instance of petitioner. Learned counsel has contended<\/p>\n
that it was mandatory to ascertain whether petitioner on account of mental<\/p>\n
retardation is    capable of making his defence, such enquiry has not been<\/p>\n
conducted by appropriate authorities and hence proceedings before committal<\/p>\n
court and Annexure-A7, order are vitiated.               Learned counsel contends that<\/p>\n
petitioner is entitled to have a fair trial which includes his ability to understand<\/p>\n
the case against him and make a proper defence. Learned counsel has placed<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                          2<\/span><\/p>\n
reliance on the decision in Madhavan Nair v. State of Kerala<\/a> (1978 KLT<\/p>\n
156) and the observations at page 159, in particular. I have heard learned<\/p>\n
Public Prosecutor as well in the matter.\n<\/p>\n<\/p>\n
       2.     Charge against petitioner is one under Section 302 of the IPC. It is<\/p>\n
stated that petitioner was staying at Snehanilayam which is an institution for<\/p>\n
mentally challenged persons from 1984 to 1991. Annexure-A1 is the certificate<\/p>\n
issued from the said institution stating so. That certificate also states that IQ of<\/p>\n
petitioner shows that he is mentally challenged of moderate degree and that<\/p>\n
(notwithstanding his biological age) his mental age is four and a half years.<\/p>\n
Obviously in the light of the said situation learned Magistrate directed an enquiry<\/p>\n
to be conducted into the mental capacity of petitioner to stand trial. He was<\/p>\n
referred to a Civil Surgeon who suggested that his examination at Mental Health<\/p>\n
Centre is required. Petitioner was referred to the Mental Health Centre. The<\/p>\n
Assistant Surgeon attached to that institution, according to the petitioner without<\/p>\n
conducting proper examination reported that petitioner is fit for trial. Petitioner<\/p>\n
thereon filed C.M.P.No.2003 of 2009 to send him for further examination to the<\/p>\n
Mental Health Centre. Learned Magistrate allowed that petition by Annexure-A2,<\/p>\n
order dated October 21,2009. Before doing so, learned Magistrate has also<\/p>\n
examined the Assistant Surgeon as CW1 and marked her report as Ext.C1.<\/p>\n
Learned Magistrate was of the view that deposition of CW1 would show that she<\/p>\n
had not conducted any medical test to determine mental state of petitioner and<\/p>\n
instead, opinion was based on         mere clinical observation and examination.<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                           3<\/span><\/p>\n
Learned Magistrate thought that it is necessary to have a detailed study of the<\/p>\n
mental state of petitioner, allowed C.M.P.No.2003 of 2009 and referred petitioner<\/p>\n
to the Superintendent of Mental Health Centre, Thrissur. The latter was directed<\/p>\n
to constitute a Medical Board consisting of       a Neurologist, Psychiatrist and a<\/p>\n
Psychologist to evaluate mental condition of petitioner. The Superintendent<\/p>\n
was directed to file a report before the court after examination. Accordingly<\/p>\n
petitioner was sent to the Medical Board constituted by the Superintendent of<\/p>\n
Mental Health Centre           and he was examined by that             Board.    The<\/p>\n
Superintendent of Mental Health Centre submitted Annexure-A3, report dated<\/p>\n
April 12, 2010 stating that physiological and psychological evaluation was done<\/p>\n
“clinically” and that there is evidence of mild retardation. Petitioner was called for<\/p>\n
a psychological testing of quantification of his IQ on 09.04.2010 but he was not<\/p>\n
brought for that test. Based on the available materials, Superintendent opined<\/p>\n
in Annexure-3 that “Mr. Rasheed is having mild mental retardations. There is no<\/p>\n
evidence and another psychiatric syndrome or neurological abnormalities.” The<\/p>\n
Superintendent was examined as CW2 (his deposition is Annexure-A4). Then<\/p>\n
also he stated that Medical Board had examined petitioner on 05.04.2010 when<\/p>\n
he was found to have mental retardation, an IQ test was arranged on 09.04.2010<\/p>\n
but petitioner was not brought for that test. There was no symptoms of any<\/p>\n
psychiatric illness or neurological abnormalities. He can understand the nature<\/p>\n
of trial and has slight mental retardation. Witness stated that petitioner is not<\/p>\n
insane and that sanity and mental retardation are different.        Learned counsel<\/p>\n
argued about the manner of diagnosis of mental retardation as per the latest<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                         4<\/span><\/p>\n
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)<\/p>\n
and that three criteria must be met for a diagnosis of mental retardation: an IQ<\/p>\n
below 70, significant limitations in two or more areas of adaptive behaviour (as<\/p>\n
measured by an adaptive behaviour rating scale, ie., communication, self-help<\/p>\n
skills, interpersonal skills and more) and evidence that the limitations became<\/p>\n
apparent before the aged of 18.\n<\/p>\n<\/p>\n
        3.    Based on the opinion of Superintendent of Mental Health Centre,<\/p>\n
learned Magistrate has passed Annexure-A6, order. Learned Magistrate opined<\/p>\n
that concurrent findings in Exts.C1 and C2 are sufficient to arrive at the<\/p>\n
conclusion that petitioner is sane and can understand the nature of trial and is fit<\/p>\n
to stand trial. Though petitioner has mild retardation and his IQ is slightly low<\/p>\n
C.M.P.No.1574 of 2010 filed      by petitioner to send him for further test to the<\/p>\n
Medical Board was not accepted.         Following that,  learned Magistrate has<\/p>\n
passed Annexure-A7, order of committal. It is the said proceedings which are<\/p>\n
under challenge as first above stated.\n<\/p>\n<\/p>\n
        4.    Though originally mental retardation was not a subject matter of<\/p>\n
enquiry under Section 328 of the Code, that has been brought into the Statute<\/p>\n
by Act 5 of 2009 with effect from 31.12.2009. Now as the position stands the<\/p>\n
Magistrate is to conduct an enquiry whether an accused is mentally retarded as<\/p>\n
well. Section 328 of the Code prescribes the procedure. Sub-section (1) of<\/p>\n
Section 328 states that when a Magistrate holding an enquiry has reason to<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                          5<\/span><\/p>\n
believe that the person against whom the enquiry is being held is of unsound<\/p>\n
mind and consequently incapable of making his defence, the Magistrate shall<\/p>\n
enquire into the fact of such unsoundness of mind and shall cause such person<\/p>\n
to be examined by the Civil Surgeon of the district or such other Medical Officer<\/p>\n
as the State Government may direct, and thereupon shall examine such<\/p>\n
Surgeon or other officer as a witness and shall reduce the examination to writing.<\/p>\n
Sub-section (1A) incorporated by Act 5 of 2009 as above stated, states that if<\/p>\n
the Civil Surgeon finds the accused to be of unsound mind, he shall refer such<\/p>\n
person to a Psychiatrist       or Clinical Psychologist  for care, treatment and<\/p>\n
prognosis of the condition and the Psychiatrist or Clinical Psychologist as the<\/p>\n
case may be shall inform the Magistrate whether the accused is suffering from<\/p>\n
unsoundness of mind or “mental retardation”. It is pursuant to the said provision<\/p>\n
that learned Magistrate has undertaken the enquiry in the present case. Now<\/p>\n
the question is whether enquiry conducted and finding entered by learned<\/p>\n
Magistrate would stand the test prescribed under Section 328 of the Code above<\/p>\n
stated. Learned Magistrate was right in referring petitioner to the Medical Board<\/p>\n
in the light of the in-perfect examination conducted by the Assistant Surgeon and<\/p>\n
obtaining a report. But it is seen from Ext.C2 (Annexure-A3) and the statement<\/p>\n
of CW2 (the Superintendent of Mental Health Centre) that though the Medical<\/p>\n
Board wanted an IQ test to be conducted on 09.04.2010 but petitioner was not<\/p>\n
made available for that test which meant that the IQ test was not conducted. In<\/p>\n
otherwords, it was without conducting IQ test that the Superintendent of Medical<\/p>\n
Health Centre opined in Annexure-A3 that mental retardation is mild and, in his<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                         6<\/span><\/p>\n
evidence as CW2 it is stated that there was no symptom of any psychiatric<\/p>\n
illness  or neurological abnormalities and that he can understand the nature of<\/p>\n
trial.\n<\/p>\n<\/p>\n
       5.    In Madhavan Nair v. State of Kerala<\/a> referred to above learned<\/p>\n
Judge observed:\n<\/p>\n<\/p>\n
                   “…………..  Valuable rights have    been<\/p>\n
            conferred on the accused under Ss.207 and 209 of<\/p>\n
            the Code and as stated earlier, he is entitled to free<\/p>\n
            copies of statements and documents referred to<\/p>\n
            therein and the Magistrate is bound, without delay to<\/p>\n
            furnish such statements and documents to the<\/p>\n
            accused. If the person accused of an offence is a<\/p>\n
            lunatic    incapable    of  defending  himself    and<\/p>\n
            understanding what is happening in the court, how it<\/p>\n
            is possible for the Magistrate to comply with the<\/p>\n
            requirements of the salient provisions in Ss.207 and<\/p>\n
            208. Before action under S.209 is taken against an<\/p>\n
            accused, he is entitled to get copies of statements<\/p>\n
            and documents which give him notice of the case<\/p>\n
            which he has to meet.        While passing an order<\/p>\n
            under S.209, the accused must know that he was<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                           7<\/span><\/p>\n
              being committed to the Court of Session. But all<\/p>\n
              these requirements can be complied with only in the<\/p>\n
              case of a person of sound mind and not of unsound<\/p>\n
              mind. …………”\n<\/p>\n
In otherwords, the          Magistrate must be satisfied from the enquiry he has<\/p>\n
conducted that petitioner is capable of understanding things and making his<\/p>\n
defence in a meaningful manner. It is only in such a situation, case could be<\/p>\n
committed to the court of Sessions for trial. As I stated, one thing is lacking in<\/p>\n
the present case, ie. quantification of the IQ of petitioner and an opinion based<\/p>\n
on that. In such a situation it is doubtful whether petitioner is able to make his<\/p>\n
defence in a meaningful manner.            I consider that it is not fair to commit<\/p>\n
petitioner for trial in such a doubtful situation. I do not forget that under Section<\/p>\n
329 of the Code, learned Sessions Judge also has a similar power. But, going<\/p>\n
by Sub-section (1) of that provision the said situation arises when the Sessions<\/p>\n
Judge has reason to think at the trial (ie. after framing charge) that the person<\/p>\n
concerned is of unsound mind. For the purpose of an effective and meaningful<\/p>\n
framing of charge and trial, petitioner should be           capable of    making his<\/p>\n
defence. Having regard to these matters I am inclined to think that committal<\/p>\n
was not proper.\n<\/p>\n
Crl.M.C.No.4938\/2010<\/p>\n
                                          8<\/span><\/p>\n
       Resultantly this petition is allowed and Annexures-A6 and A7, orders are<\/p>\n
set aside. Learned Judicial First Class Magistrate-I, Ernakulam is directed to<\/p>\n
conduct further enquiry into the matter as provided under Section 328 of the<\/p>\n
Code by directing the Superintendent of Mental Health Centre to coduct a<\/p>\n
detailed psychologic test for quantification of the IQ of petitioner as suggested<\/p>\n
in Annexure-A3, certificate and based on that, to report whether petitioner is<\/p>\n
capable of standing trial     and pass appropriate consequential orders in the<\/p>\n
matter.\n<\/p>\n<\/p>\n
                                               THOMAS P.JOSEPH,
\n                                                       Judge.\n<\/p>\n
cks<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rasheed vs State Of Kerala on 13 January, 2011 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 […]<\/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":[8,21],"tags":[],"class_list":["post-186591","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRasheed vs State Of Kerala on 13 January, 2011 - 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\/rasheed-vs-state-of-kerala-on-13-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rasheed vs State Of Kerala on 13 January, 2011 - 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