Tripura High Court
Court On Its Own Motion vs The State Of Tripura on 2 December, 2019
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
WP(C)(PIL) No.24 of 2019
Court on its own motion
........... Petitioner(s)
Versus
The State of Tripura
.......... Respondent(s)
For Petitioner(s) : None.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
Order
02/12/2019
While the Registry was compiling the data of pending Sessions trial of under trial prisoners, one case of Sri Subhash Debnath who is an under trial prisoner in connection with Sessions Case No.ST(Type-I) 19 of 2013 came to be noticed. The said accused is facing allegations of having committed offences punishable under Section 498A and Section 302 of IPC. Since he has been in jail for over 5 years as an under trial prisoner, the Chief Justice on the administrative side had directed the Registry orally to gather further information about the reason why Sessions trial remained pending for over 5 years. The Registrar(Judicial) thereupon conducted further inquires and submitted the report dated 29.11.2019 which reads as under :
"Matter relates to a report dated 02.11.2019 (at Flag-A) of the Addl. District & Sessions Judge, Dhalai Judicial District, Kamalpur in respect of the Under Trial prisoner Sri Subhash Debnath who is in jail for more than 05 years i.e. for the period between 5 to 10 years.Page 2 of 7
In compliance with the kind direction of Your Lordship, a brief report in this regard has been prepared and appended here in below after going through the connected case record i.e. ST (Type-I) (State of Tripura vs Subhash Debnath).
REPORT
01. On 27.06.2013, Case Record bearing No.GR 140/2012 was received by the Court of Addl. Sessions Judge, North Tripura, Kamalpur on commitment. Charsheet had been filed against the accused Subhash Debnath under section 498A/302 IPC.
02. On 22.08.2013, the accused was produced before the Trial Court by his brother Arjun Debnath and a plea was taken that the accused person was suffering from partial mental illness for a long time and was under treatment of Psychiatrist at Agartala, but without any significant improvement. Bail petition was filed and after hearing the parties the same was allowed subject to furnishing a bond of `40,000/- with one surety. But, the brother of the accused submitted that neither he nor any other of his family members was interested to take the accused on bail. Under this circumstances and finding no alternative, the accused was kept at Kamalpur BSM Hospital pending inquiry regarding mental state of the accused. The Medical Superintendant, Dhalai District Hospital was directed to cause examination of the accused person by a psychiatrist of that hospital on following points :
i. Whether accused is a man of unsound mind and if so, since how long he is suffering from mental illness and whether his treatment as indoor patient is required.
ii. Whether he is able to take his defence at this stage in the instant case.
iii. Whether there is any set up within Dhalai District for treatment of mentally ill person as indoor patient and if not, where this type of facility is available in the State of Tripura.
03. 29.08.2013 was fixed for report from the Medical Superintendant, District Hospital, Dhalai. On that day a report was received with the opinion that the accused person does not have any active psychopathology, but his intellectual ability appears to be poor and that a psychometric test is necessary to come to final conclusion of his mental status, which facility is available only at Modern Psychiatric Hospital, Narsingarh. On the basis of this report, the Trial Court observed that at present the accused person is not suffering from any unsoundness of mind and thus, there is no impediment to send him in judicial Page 3 of 7 custody as no bail bond is submitted. Accordingly, he was remanded to judicial custody and summon was issued upon the Doctor to depose in this case. On 20.09.2013 after recording the evidence of the Doctor concerned and hearing both sides, the Court passed the order to produce the accused person at Modern Psychiatric Hospital, Narsingarh for the purpose of subjecting him to psychometric test. At the same time, the Court also sought for the opinion of the Superintendant, Modern Psychiatric Hospital, Narsingarh on following points :
"Whether said Subhash Debnath is a patient of mental retardation and if so, whether he is able to take his defence in this case or not. If he is a patient of mental retardation and is incapable of taking his defence, how much time may be required for his treatment to make him able to take his defence."
The Court further observed that if he is found incapable of taking his defence, his treatment at Modern Psychiatric Hospital, Narsingarh may be continued till his recovery for making him able to take his defence. It was also ordered that after the examination of the accused person was over, he may be returned to Kamalpur Sub-Jail again without delay, unless his further detention is required either as indoor patient at Modern Psychiatric Hospital, Narsingarh or otherwise and thereafter he may be produced before the Court after his recovery.
Next date was fixed on 07.11.2013 for production of the accused ad report.
04. It is worthy to mention that following medical examination reports by the Board of Psychiatrists are available in the case record :
i. Report dated 07.10.2013 indicates that the accused is a patient of mental retardation. At present he is not having any mental illness. Mental retardation is an arrested intellectual development of the brain which is developmental disorder of the brain and he is having 50% disability. Mental retardation is not curable and does not have any proper treatment and that Modern Psychiatric Hospital, Narsingarh is only for the treatment of psychiatric patient. As he is of mild mental retardation of having 50% disabilities, he is not able to make his defence.Page 4 of 7
ii. Report dated 21.08.2014 corroborates the above stated finding with further observation that he may be discharged from the hospital.
iii. Report dated 13.02.2018 shows that patient is suffering from MR with psychosis and that at present he is fit for trial. A report bearing same date is also available in the case record with the finding that the patient is suffering from MR with psychosis and is fit for shifting.
05. It is worthy to mention that nowhere in the record it is mentioned the accused person was undergoing treatment as an indoor patient at Modern Psychiatric Hospital, Narsingarh. However, it is apparent from the case record that during the period the accused person was in judicial custody either at Kendriya Sansodhonagar, Bishalgarh or at Kamalpur Sub-Jail from time to time. It also appears from the case record that the accused person was undergoing treatment at AGMC & GBP Hospital at Agartala in connection with physical illness also.
06. It also appears from the case record that vide order dated 21.05.2015 the case was fixed for framing of charge and subsequently, vide order dated 22.08.2016 charge was framed against the accused person under section 498A/302 of IPC fixing the schedule for examination of prosecution witnesses with effect from 05.12.2016 to 19.12.2016.
07. The order dated 03.11.2017 reveals the following observation of the Learned Court below:
"Accused Subhash Debnath produced from JC. On perusal of the record, I find that accused was sent to KST, Bishalgarh for his treatment. As per the report he was treated under OPD Surgical Department of AGMC & GBP Hospital and further that he was under treatment by psychiatrist for psychiatric illness.
Ld. Addl. PP submits that on 21.08.2014 a Board of Psychiatrists, Modern Psychiatric Hospital submitted a report that the accused is a patient of mental retardation having 50% disability and that mental retardation is a disorder of brain and not curable. It is also stated that a person having retardation of 50% disabilities is not able to make his defence. In view of that it is necessary to record the statement of the Medical Officer, Member of the Board who examined the accused at Modern Psychiatric Hospital to ascertain whether the aforesaid disabilities were since before the occurrence and he can take defence in his case.Page 5 of 7
Officer is directed to issue summons upon the three medical officers namely, Dr. Jyotirmoy Ghosh, Dr. Dhipendu Roy, Medical Officer, Modern Psychiatric Hospital and Dr. Bimal Krishna Bhowmic, HoD of the said Hospital."
08. Further, Order dated 17.04.2018 reveals the following observation of the Learned Court below :
"Accused Subhash Debnath produced from JC. Received original medical examination report by the Board of Psychiatrists. On perusal of the report I find that the medical board opined that accused Subhash Debnath has been suffering from MR with psychosis. But at preset he is fit for oral.
It appears that earlier the same Medical Board in its report 07.10.2013 stated that he was suffering from MR but not able to make his defence. So I am of the opinion that to clear the doubt whether the accused is fit to face the trial the medical officer of the Board of Psychiatrists who examined the accused and the submitted the report need to be examined on oath. Issue summons upon Dr. Bimal Krishna Bhowmic, HoD, Modern Psychiatric Hospital, Narsingarh and Dr. Swapan Ch. Barman, Medical Officer, Modern Psychiatric Hospital, Narsingarh. Accused is remanded to JC till 27.04.2018."
09. It is worth mentioning that since 03.11.2017 the case has been pending at the stage of recording the depositions of summoned witnesses, namely, Dr. Bimal Krishna Bhowmick, HoD, Modern Psychiatric Hospital, Narsingarh for the purpose of ascertaining whether the accused is fit to face the trial and that the accused person has been in judicial custody either at Kamalpur Sub-Jail or at KST, Bishalgarh in connection with his treatment at AGMC & GBP Hospital, Agartala and Modern Psychiatric Hospital, Narsingarh.
It is pertinent to mention here that earlier in compliance with the minutes of the meeting of the Hon'ble Chief Justice and other Hon'ble Judges of the High Court of Tripura held on 18.12.2018, the case record was sent to the Registry of the High Court and placed before the Hon'ble Chief Justice and thereafter, the case record was sent back to concerned Trial Court.
Submitted for favour of Your Lordship's kind consideration and order(s). S/d.
(V. Pandey) Registrar (Judicial)"
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Upon the said report being placed before the Chief Justice, following remarks were made :
" Let the note be placed before appropriate Bench on 2.12.2019 for taking suo-moto cognizance as a Public Interest Litigation."
Perusal of this report would show that since June/July 2013 the accused Subhash Debnath is in custody. The Sessions Court had offered bail upon furnishing bond of `40,000/- with one surety. Neither the brother of the accused nor his family members were prepared to offer the bail bonds and the surety. It was also suggested that the accused suffered from partial mental illness since long for which he was under treatment of Psychiatrist at Agartala. The Sessions Court had ordered examination of the accused at the hands of the doctors and Psychiatrists. However, there is no conclusive opinion on record about the mental condition of the accused, whether on account of unsoundness of mind he is incapable of making his defence. Consequently, Sessions trial against the accused has not commenced.
Thus, prima facie material on record would suggest that a person who has been charged with commission of an offence and for which he is taken in and is presently in judicial custody, is facing Sessions trial for over 6 years without conclusion, in fact without commencement. The cases of accused whose soundness of mind is in doubt, are to be dealt with in terms of Chapter XXV of the Code of Criminal Procedure. In particular when such an Page 7 of 7 issue arises in a pending Sessions trial, the procedure laid down in Sections 329 and 330 is required to be followed.
In any case, the accused must have an answer whether he suffers from such unsoundness of mind which makes him incapable of making his defence. If the answer is in the negative the trial must commence. If it is in the positive, the consequences referred to in Section 330 of Cr.P.C should follow. In either case there has to be a closure to this issue. The accused cannot be kept languishing in jail for unfinished trial for indefinite period of time.
Under the circumstances, let notice be issued to the respondent, returnable for 17th December, 2019.
Mr. Ratan Datta, learned Public Prosecutor waives notice on behalf of the respondent.
The Registry shall supply a copy of the above noted report of the Registrar(Judicial) dated 29.11.2019 as also a copy of this order to the counsel for the respondent. The Registry may also call for the record of the Sessions case from the concerned District Court so as to reach on or before the returnable date.
(ARINDAM LODH), J (AKIL KURESHI), CJ Dipesh