Kerala High Court
Babu Valleriyan vs The State Of Kerala on 20 February, 2019
Equivalent citations: AIRONLINE 2019 KER 469
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940
Crl.MC.No. 7526 of 2018
SC NO.240/2017 ON THE FILES OF THE ADDITIONAL DISTRICT & SESSIONS
COURT-V (FAST TRACK-II), KOLLAM
CRIME NO.1279/2016 OF THEKKUMBHAGOM POLICE STATION, KOLLAM
PETITIONER/ACCUSED:
BABU VALLERIYAN, S/O.VALLERIYAN,
REPRESENTED BY HIS MOTHER AND NEXT FRIEND
SMT.GRACY VALLERIYAN, D/O.JULIE,
PALUVILA VEEDU, VADAKKEKARA, THEVELLAKARA,
KARUNAGAPPALLY, KOLLAM DISTRICT.
BY ADVS.
SRI.S.RAJEEV
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
SRI.K.K.DHEERENDRAKRISHNAN
SRI.R.RAJESH(PULLIKADA)
SRI.V.VINAY
RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY GOVERNMENT PLEADER,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC:7526/2018 2
ORDER
A mentally unsound man, said to be suffering from Paranoid Schizophrenia, is being tried for murder in the Court of the Additional Sessions Judge-V, Kollam. He has approached this Court through his mother raising a grievance that the court below is proceeding with the trial without trying the fact of unsoundness of mind and his incapacity to make a defence as contemplated under law. He seeks issuance of directions to the learned Sessions Judge to proceed under Chapter XXV of the Code of Criminal Procedure, 1973 ("the Code" for the sake of brevity) which provides for provisions governing the procedure of trial of cases where the accused is suffering from unsoundness of mind.
2. According to the petitioner, he is a person having a history of mental illness and is suffering from Schizophrenia as mentioned above. He was in judicial custody till his enlargement on bail on 1.9.2018. The petitioner was arrested on 20.8.2016 and on 18.8.2017, the case was posted for framing of charge. The learned counsel appearing for the petitioner, who entered appearance on that day, submitted before court that the petitioner herein has been suffering from Paranoid Schizophrenia for the past several years and he raised a plea of unsoundness of mind. It was also submitted that psychiatric CRL.MC:7526/2018 3 treatment is being administered to him in the jail where the petitioner is undergoing incarceration. The court below directed the prison authorities to submit a medical report and the same was placed before court on 6.10.2017. The report which was dated 16.9.2017 revealed that the accused is suffering from Paranoid Schizophrenia and that he was not fit to stand trial. The case was adjourned and a fresh report was called for. In the subsequent report dated 6.12.2017, he was stated to be fit to stand trial.
3. On the strength of the said report, the court scheduled the case for trial and the witnesses were ordered to be summoned. However, on the day fixed for trial it was reported that the accused was admitted in the Mental Health Center at Thiruvananthapuram. The trial was stopped and later, on the basis of a fresh report received on 30.7.2018, the case was again scheduled for trial to 3.9.2018. On 3.9.2018, the learned counsel appearing for the petitioner filed Annexure-A1 petition stating that he is still suffering from unsoundness of mind and thus incapable of making his defence. However, the learned Sessions Judge relied on the report of the Superintendent of Mental Health Centre, Thiruvananthapuram and re-scheduled the case for trial to commence from 12.11.2018.
4. The report relied on by the learned Sessions Judge, which is produced as Annexure-4, reads as follows.
CRL.MC:7526/2018 4
"I may inform the Hon'ble Court as superintendent of this hospital that IU examined Sri. Babu Valleriyan S/o. Valleriyan, Paluvila Veettil, St. Antonie Church South, Koivila Muri,Thevalakkara Village on 06/09/2018. I am of the opinion that he is suffering from Schizophrenia Paranoid. He is on medications. At present he is having sad mood, occasional auditory hallucination and delusion of persecution which are decreasing in intensity. He has no harmful behaviour at present. He understands the legal procedures against him. He wishes to appear in Court.
His treating doctor, Dr.Arif Annesh had submitted a report to the Hon'ble Court on 26/07/2018 that he is fit to stand trial (copy of the same report is attached) After verifying the case records of the patient and examining the patient at present, I am of the opinion that he is fit to stand trial at present.
He needs regular outpatient psychiatric treatment. He is at risk of relapse of illness at present due to poor compliance to treatment and stressful life situation."
5. When the Court below insisted that the trial should proceed on the basis of Annexure-4 report, the petitioner approached this Court with this petition seeking interference.
6. I have heard Sri.K.K.Dheerendra Krishnan, the learned counsel appearing for the petitioner and Sri.Suman Chakravarthy, the learned Senior Public Prosecutor.
CRL.MC:7526/2018 5
7. After hearing the submissions of the learned counsel appearing for the petitioner and the learned Senior Public Prosecutor and after going through the proceedings sheet which was made available, this Court stayed the proceedings. The learned Sessions Judge was directed to try the fact of unsoundness and incapacity and record a finding as contemplated under law and proceed accordingly.
8. The proceeding sheet produced before this Court would reveal gross insensitivity on the part of the trial judge. Instead of proceeding to try the factum of unsoundness, the Court has ventured to direct the petitioner to produce the certified copy of the petition filed before this Court. When the case was taken up on 21.11.2018, as the learned counsel sought for time, the court below directed the petitioner to produce a clarified copy of the order passed by this Court. It is as if the Court was oblivious of the procedure contemplated under Chapter XXV of the Code. The proceedings sheet would not show that any endeavor was made by the Court to try the factum of unsoundness of mind.
9. The primary objective of the law of Criminal procedure is to ensure that accused persons are granted a fair trial. The right to be informed of the accusation and an opportunity to prefer defence is granted to the accused by the Code. The accused is also having a right under Section 303 of the Code to be defended by a pleader of CRL.MC:7526/2018 6 his choice.
10. An accused, who is of unsound mind at the time of the enquiry or trial, may not be able to comprehend the gravity of the charges levelled against him. He certainly would not be in a position to explain the alleged criminal conduct. The accused being the alleged perpetrator of the crime would be the person having the best knowledge of his own activities in relation to the incriminating circumstances. If, due to unsoundness of mind, he is unable to provide this vital information to his counsel, his defence cannot be conducted to his best advantage. If the inquiry or trial is proceeded with in his absence, the accused will not be in a position to impart instructions to his counsel to enable him to effectively cross examine the witnesses. He would also not be in a position to explain the incriminating circumstances which emanates from the prosecution evidence when he is questioned under Section 313 of the Code. It is for these reasons that provisions have been incorporated in the Code which lays down that the inquiry proceedings or trial of a person, who is incapable of defending himself due to unsoundness of mind, be postponed till he is able to understand the proceedings. The salutary intention being to ensure that an accused incapacitated due to unsoundness of mind is not denied his basic human right to a have a fair trial.
CRL.MC:7526/2018 7
11. Chapter XXV of the Code delineates the provisions as to accused persons of unsound mind. It begins with Section 328 of the Code, which provides the procedure for enquiry by a Magistrate in regard to the fact of unsoundness of mind. A Magistrate holding an enquiry, if has reason to believe that the person before him is of unsound mind and consequently incapable of making his defence, then he is enjoined upon to enquire into such unsoundness of mind and shall cause such person to be examined by Civil Surgeon of the District or such other medical officer as the State Government may direct. Such Civil Surgeon or Medical Officer is thereafter to be examined as a witness. Pending this enquiry, the Magistrate may deal with such a person in accordance with the provisions of Section 330 of the Code, which talks of release of the person of unsound mind pending investigation or trial. If Magistrate is of the opinion that person is of unsound mind, he is to record his finding to that effect and then postpone the proceedings in the case.
12. Section 329 of the Code, on the other hand, provides the procedure in case of person of unsound mind tried before Court. This section makes it clear that in a trial before Magistrate or Court of Session, if the accused appears to be of unsound mind and consequently incapable of making his defence, then the Court shall, in the first instance, try the fact of such unsoundness of mind and CRL.MC:7526/2018 8 incapacity and if satisfied in this regard, shall record a finding to that effect and shall postpone further proceedings. Section 329 was amended by the Criminal Procedure Amendment Act, 2008 and Section 1(A) was inserted which says that if during trial, the Magistrate or Court of Session finds the accused to be of unsound mind, the Court 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. Section 329 (1A) contemplates a situation, wherein during trial, the Magistrate or a Court of Session finds that the accused is a person of unsound mind and decides to refer him to a specialist to remove its apprehension. If the report is negative, the accused is conferred a right to prefer an appeal against the report. If the report vindicates the finding of the Magistrate, then 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 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 CRL.MC:7526/2018 9 provided under Section 330 of the Code.
13. Since the requirements under Sections 328 and 329 of the Code are mandatory, the Court is to try the fact of unsoundness of mind and capacity of the accused in the first instance. The commencement of trial without recording medical evidence or satisfying himself or recording a finding on the material placed before him, will vitiate the trial. Where the Court decides that the accused is of unsound mind and consequently incapable of making his defence, the trial is to be postponed. As provided under Section 330 of the Code, such a person may be released 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 the Court. Section 331 of the Code speaks about resumption of enquiry or trial and according to this section, whenever an enquiry or trial is postponed under Section 328 or 329, the Magistrate or the Court as the case may be, may at any time after the person concerned has ceased to be unsound mind, resume enquiry or trial, and require the accused to appear or be brought before such Magistrate or Court. Section 332 throws light on the procedure when the accused appears again before the Magistrate or Court and according to this section, when the accused appears or is again brought before the Magistrate CRL.MC:7526/2018 10 or Court as the case may be, the Magistrate or Court considers him capable of making his defence, it shall proceed with the enquiry or trial.
14. Now the procedure to be followed when it appears to the Court that the accused placed on trial was of unsound mind was explained by a Division Bench of Travancore-Cochin High Court in State v. Kochan Chellayyan (AIR 1954 Ker. 435). The decision was rendered with reference to Section 465 of the old Code. However, the procedure contemplated is the same. The Bench headed by His Lordship K.T. Koshy C.J., held as follows in paragraph 9 of the report.
"The first stage laid down is that it must appeal to the Judge that the accused placed on his trial was of unsound mind and incapable of making his defence. The next stage that was to follow when it appeared to the Judge that the accused was of unsound mind and, consequently, incapable of making his defence was that the fact of such unsoundness of mind and incapacity should be enquired into on the materials placed before the Court. Where it did not appear to the Judge that the accused was of unsound mind or that he was incapable of making his defence, it was not therefore necessary, much less was it incumbent upon the Judge, to adopt the procedure provided by the second part of the section, namely, to hold an enquiry as to the unsoundness of mind of the accused placed on his trial, for the purpose of ascertaining whether he was incapable of making his defence. Emperor v. Durga Charan Singh (AIR 1938 Cal 6 (A)).
15. In other words, the Court is to inquire into the fact of unsoundness of mind and consequent incapacity to make his defence, for which it is to ask for evidence. When the accused raises the plea CRL.MC:7526/2018 11 of unsoundness of mind, the initial onus is on him to prove it. He is to lead evidence. If the opinion of the medical expert examining the accused does not favour him, he can lead other permissible evidence to prove his mental condition. The prosecution has a right to rebut the evidence led by the accused. The procedure for trial of the fact of unsoundness of mind and consequent incapacity to make a defence by the accused postulates recording of evidence in support and in rebuttal of it. The statement of the doctor, who examined the accused and certifies the accused to be of unsound mind should be recorded as a witness. The accused cannot be permitted to get away from punishment by malingering unsoundness of mind. The party contesting such a plea has an inherent right to rebut it by evidence. After such evidence as may be recorded by the court, Section 329 of the Code again provides for performing three essential functions by it. The first is that such evidence has to be considered. The consideration is to be demonstrated by its appraisal on the record. The second essential condition is that the Court has to be satisfied of the fact, that is, the fact which is being tried first. After this satisfaction, the third element comes that a finding has to be recorded demonstrating the consideration of evidence and satisfaction about this fact. The three elements cannot be judicially dealt with unless the evidence as may be led by the person raising the plea referred in Section 329 of the Code is dealt in the manner indicated. Such a CRL.MC:7526/2018 12 provision is clearly in consonance with the principle of fair administration of justice. Any violation by a Court in not examining proper evidence for recording a finding as directed by Section 329 of the Code would clearly vitiate the trial, as an insane or mentally unsound accused cannot understand the trial and appreciate the evidence against him and answer the charge because of his mental incapacity. Any trial of an unsound person violating the above procedure is vitiated. [See Gurjit Singh v. State of Punjab (1986 Crl.L.J. 1505)].
16. A Division Bench of this Court in Dhora alias Vellinkiri v. State of Kerala (1991 (2) KLJ 754) had occasion to delve on the nuances of Section 329 of the IPC. Speaking for the Division Bench, His Lordship K.T. Thomas J., as he was, held as follows:-
"Thus, law enjoins on the Sessions Judge to hold a trial regarding the soundness of the accused's mind when it "appears" to him that the person brought to the trial is of unsound mind and consequently incapable of making his defence. According to the requirement, he shall "in the first instance, try, the fact of such unsoundness and incapacity". He can proceed only if he is satisfied that the accused is of sound mind and is capable of making his defence. The word "appears" in Section 329 is of lesser degree of probabilities than the word proof. The corresponding section in the old Code of Criminal Procedure (Section 465) received such an interpretation from Supreme Court in I.V. Sivaswami v. State of Mysore [A.I.R. 1971 S.C. 1638]. If there is something in the demeanor of accused or in facts of the case which raise a doubt in the mind of court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the court to try the said CRL.MC:7526/2018 13 fact before proceeding with the trial into the charge. Failure to follow the procedure laid down in Section 329 would vitiate the trial as the provision is mandatory vide Supdt. and Rem. of L.A. v. Durga Charan [1961 (1) Crl.L.J. 811] and Satya Devi v. State [A.I.R. 1969 Punj and Har 387]."
17. Coming to the facts of the case, I find that there were materials before the Court in the form of medical reports which revealed that the accused was suffered from Paranoid Schizophrenia. The learned trial Judge did not permit the accused to let in any evidence to prove the factum of unsoundness of mind. Neither was the Superintendent nor the treating Doctor examined as a witness in court. He did not call upon the counsel for the accused, who had filed Annexure-1 application, bringing on record the fact of unsoundness and his incapacity to lead evidence. It is as if the learned Sessions Judge was totally oblivious of the provisions of Chapter XXV of the Code. Even in the report dated 6.9.2018, the Superintendent of the Mental Health Center had reported that the petitioner is suffering from Paranoid Schizophrenia. When medical reports were placed before the learned Sessions Judge to the effect that the petitioner is suffering from Schizophrenia, I am at a loss to understand why it did not strike his mind that he should adopt the procedure prescribed in Section 329 of the Code. The fact that the accused was admitted in the Mental Hospital and that he was suffering from Paranoid Schizophrenia did not deter the learned Sessions Judge from posting CRL.MC:7526/2018 14 the case for trial. The procedure adopted by the learned Sessions Judge is illegal and in gross violation of the provisions of the Code. The learned Sessions Judge ought to have, in the first instance, tried the fact of such unsoundness and incapacity and he ought to have proceeded with the trial only if was satisfied that the accused is of sound mind and is capable of making his defence.
18. For the aforementioned reasons, I am inclined to interfere with the matter to ensure that the procedure contemplated under the Code is given effect to. The order dated 7.9.2018, as per which the Court had scheduled the case for trial, is set aside. The learned Sessions Judge is directed to proceed with the trial strictly following the procedure contemplated under Section 329 of the Code as detailed above. The fact of unsoundness of mind and incapacity shall be tried and a decision shall be taken expeditiously, at any rate, within a period of 45 days from the date of production of a copy of this order.
This petition will stand allowed with the above directions.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE ps/21/2/2019 //TRUE COPY// P.A.TO JUDGE CRL.MC:7526/2018 15 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY ADVOCATE P.S.SHAJI, BEFORE THE ADDITIONAL DISTRICT AND SESSIONS COURT-V, KOLLAM (FAST TRACK-II), ANNEXURE A2 THE CASUALTY OUT PATIENT TICKET BEARING NO.126244 DATED 03.09.2018 ISSUED TO THE ACCUSED AT THE A.A.RAHIM MEMORIAL HOSPITAL, KOLLAM.
ANNEXURE A3 THE TRUE COPY OF THE CERTIFICATE OF
EXAMINATION DATED 03.09.2018 ISSUED BY THE
JUNIOR CONSULTANT, A.A.RAHIM MEMORIAL
DISTRICT HOSPITAL, KOLLAM.
ANNEXURE A4 THE TRUE COPY OF THE COMMUNICATION
NO.2014/2016/MHC/TVM DATED 06.09.2018.
ANNEXURE A5 THE TRUE COPY OF THE FIR NO.1279/2016 OF
THEKKUBHAGOM POLICE STATION.
ANNEXURE A6 THE TRUE COPY OF THE CERTIFICATE OF
ADMISSION ATTENDANCE DATED 06.11.2018
ISSUED BY THE HOLY CROSS HOSPITAL,
KOTTIYAM, KOLLAM.