Telangana High Court
Malladi Sai Manoj vs The State Of Telangana on 24 September, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.6189 OF 2024
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to quash the order passed in Crl.MP.No.8 of 2024 in SC.PCS.No.48 of 2023 on the file of XII Additional Metropolitan Sessions Judge, Hyderabad.
2. The brief facts of the case are that on 26.12.2022 a complaint was received stating that she got married to petitioner on 23.05.2013 and in the month of October 2014 she was blessed with baby girl (hereinafter referred to as 'victim'). However, due to personal disputes between the petitioner and his wife, both began to live separately from the year 2016 and in the year 2019 petitioner approached the Court for child custody and as per the directions of the Court, since July 2020 the victim was staying with her father i.e., petitioner. On 18.12.2022 the victim approached her mother and complained that she is 2 SKS,J Crl.P.No.6189 OF 2024 suffering with abdominal pain and severe fever, as such, she has taken the victim to pediatrician who suggested consulting a gynecologist. The gynecologist examined her and confirmed that there was a rupture, swelling and redness in the vaginal part of the victim and advised her to Government Doctor. Later, the mother stated that her daughter i.e., victim, revealed that her father i.e., the petitioner used to show private parts removing his pants, fingered her vagina and used to show porn videos to victim/daughter and assaulted her several times. It is alleged that when victim informed her grandmother about the behavior of petitioner, her grandmother convinced the victim stating that it is not an issue as he is your father. It was further alleged that petitioner being influential person coming from strong political background, the victim and her mother were frightened that they would be killed if they approach Police.
3. On completion of due investigation, the Police filed charge sheet arraying the petitioner as accused No.1 for the offences punishable under Sections 376 AB of Indian 3 SKS,J Crl.P.No.6189 OF 2024 Penal Code (for short 'IPC') and Section 5 read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'Act, 2012'). The petitioner filed Crl.MP.No.8 of 2024 under Section 91 of Cr.P.C., praying to direct the Superintendent, Government Hospital, Institute of Mental Health, Erragadda, Hyderabad, to produce the case sheet of petitioner when he was admitted in Hospital and treated as UT.No.2836. The said Crl.MP., was dismissed vide order dated 04.04.2024. Aggrieved thereby, this Criminal Petition is filed.
4. Heard Sri Enuganti Sudhanshu Rao, learned counsel for petitioner, and Sri D.Arun Kumar, learned Additional Public Prosecutor, appearing for respondent - State.
5. Learned counsel for petitioner submitted that petitioner was admitted to the Institute of Mental Health from 05.01.2023 and the case sheet of the same was never provided to petitioner so as to defend himself during trial. He contended that Sections 328, 329 and 330 of Cr.P.C., provides for procedure to be followed in the cases where 4 SKS,J Crl.P.No.6189 OF 2024 the accused person is mentally retarded and for that purpose, obtaining the medical records of the petitioner from the Institute of Mental Health, Erragada, Hyderabad, is crucial. He asserted that letter dated 04.01.2023 addressed by the Superintendant of Prisons narrating the incidents occurred in the prison and requesting the Institute of Medical Health to admit the petitioner and treat him. He lamented that without considering the said facts, the trial Court dismissed Crl.MP.No.08 of 2024 vide order dated 04.04.2024 and observing that case sheet of accused in judicial custody cannot be a criteria to come to conclusion about lunatic condition of petitioner. He reiterated that the trial Court failed to appreciate the procedure contemplated under Section 328 of Cr.P.C. Therefore, prayed this Court to allow the criminal petition quashing the order dated 04.04.2024 passed in Crl.MP.No.8 of 2024 in SC.PCS.No.48 of 2023.
6. On the other hand, the learned Additional Public Prosecutor, appearing for respondent - State, submitted that there are no illegalities and infirmities in the order 5 SKS,J Crl.P.No.6189 OF 2024 passed by the trial Court in Crl.MP.No.8 of 2024. Therefore, prayed this Court to dismiss the criminal petition.
7. Having regard to the rival submissions made and on going through the material placed on record, it is noted that the limited contention of learned counsel for petitioner is that petitioner was admitted to the Institute of Mental Health from 05.01.2023 to undergo treatment for his mental illness but the case sheet of the same was never provided to petitioner so as to defend himself during trial, whereas, it is the specific contention of learned Additional Public Prosecutor that chapter XXV of Cr.P.C., would come in operation only under the circumstance when petitioner would claim to be of unsound mind.
8. Perusal of the material on record would reveal that petitioner was remanded to judicial custody on 28.12.2022 ; on 03.01.2022 the Deputy Civil Surgeon, Central Prison Hospital, Central Prison, Hyderabad, referred petitioner to the Institute of Medical Health sating that the behavior of petitioner was abnormal and 6 SKS,J Crl.P.No.6189 OF 2024 admittedly, the petitioner was admitted in the Institute of Medical Health from 05.01.2023. That apart, it is seen that the trial Court dismissed the petition filed by petitioner under Section 91 of Cr.P.C., observing that there would be no requirement of calling for reports of the petitioner from the Institute of Mental Health as the petitioner was sent to Hospital subsequent to occurrence of offence and that being so, there is no need to follow the procedure contemplated under Sections 328, 329 and 330 of Cr.P.C.
9. At this stage, it is just and imperative to extract Sections 328, 329 and 330 of Cr.P.C., and the same reads as under:
"328. Procedure in case of accused being lunatic.--(1) 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 by the civil surgeon of the district or such other medical officer as the State Government may direct, and 7 SKS,J Crl.P.No.6189 OF 2024 thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing. 1[(1A) 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:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
2[(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the 8 SKS,J Crl.P.No.6189 OF 2024 record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under Section 330:
Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330.
(4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental 149 retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330.
329. Procedure in case of person of unsound mind tried before Court.--(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of 9 SKS,J Crl.P.No.6189 OF 2024 such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
1[(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.
2[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the 10 SKS,J Crl.P.No.6189 OF 2024 prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330:
Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.
(3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.
3[330. Release of person of unsound mind pending investigation or trial.--(1) Whenever a person if found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail:
Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in- patient treatment and a friend or relative undertakes to 11 SKS,J Crl.P.No.6189 OF 2024 obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.
(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government:
Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987). (3) Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered:
Provided that--
(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under section 328 or section 329, such release may be 12 SKS,J Crl.P.No.6189 OF 2024 ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person;
(b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training."
10. From the above extracted portion it is to be noted that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under Section 330.
11. In the light of the above, this Court is of the opinion that the trial Court has to proceed with the trial basing on the report issued with regard to the mental health of petitioner. That being so, this Court deems it fit to dispose 13 SKS,J Crl.P.No.6189 OF 2024 of this Criminal Petition, with a direction to the trial Court to obtain the mental health report of the petitioner from the concerned authorities and accordingly proceed with the trial.
12. With the above direction, this Criminal Petition is disposed of.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 24.09.2024 PT