Bombay High Court
The State Of Maharashtra vs Subhashsing S/O Shalikramsingh ... on 20 July, 1994
Equivalent citations: 1996(1)BOMCR102
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. In this un-usual revision at the instance of State Government, order passed by the Additional Sessions Judge, Amravati, releasing the accused and cancelling his bail bonds, vide his judgment of acquittal is in challenge to a limited extent. The following facts will highlight the grievance of the State.
2. The accused was tried for offence under section 302 I.P.C. for committing murder of his son Sachin, who was about 10 to 12 years of age. The accused raised defence under section 84 I.P.C. in the sense that he feigned ignorance about the act done but pleaded that he was lunatic at the time when the act was committed and he was incapable of knowing anything. In fact, he did not even know that he really had killed his son. The accused was tried. The accused was not found to be lunatic at the time when trial went on. Therefore, there was no question of proceeding under section 329 and 330 Cr. P.C. The learned Additional Sessions Judge recorded finding that it was proved that the accused had murdered his son. He, however, held that at the time when incident took place and at the time when accused murdered his son, he was incapacitated because of the lunacy and, therefore, the trial Court gave him advantage of section 84 I.P.C. and straightway acquitted him. The operative order reads as under :
"The accused is hereby acquitted. His bail bond stand cancelled. Muddemal property be destroyed after the period of appeal".
3. It is this order which is under challenge to a limited extent that the accused should not have been let off with an order of acquittal. Shri Deshpande, 'A' Panel Counsel appearing on behalf of State has drawn my attention to the provisions of section 335 Cr. P.C. Section 335 inter alia provides that when the accused person is acquitted on the ground that he was lunatic and where the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence - (a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, or (b) order such person to be delivered to any relative or friend of such person. Sub-section (2) of section 335 provides that no order of detention of the accused to a lunatic asylum shall be made under Clause (a) of sub-section (1) otherwise that in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912. It is to be noted now that the provisions of the Indian Lunacy Act, 1912 will have to be read with reference to the provisions of The Mental Health Act, 1987. Sub-section (3) of section 335 provides that no order for the delivery of the accused to a relative or friend shall be made under Clause (b) of sub-section (1), except upon the application of such relative or friend and on his giving security to the Court that he shall properly take care of said person and prevent him from doing injury to himself or to any other person. The said relative has also to assure that the accused would be produced for inspection before such officer and at such time and place as State Government may direct in that behalf. If the Court decides to put the said person in safe custody, then the Court has to report the matter to State Government. Shri Deshpande contends relying upon these provisions of section 335 that they are of mandatory nature from the very language thereof. He points out that the Trial Court has not followed the course under section 335 at all and, therefore, the order letting off the accused straightway has been rendered erroneous.
4. Shri Mardikar, learned Advocate for non-applicant contends firstly that the course to be followed under section 335 is not mandatory and the Court could have straightway let off the accused after acquitting him. He further contended that in one way, by filing the instant revision, the State is challenging the acquittal of the accused. He further contends that if the revision is allowed, it will have the effect of arresting liberty of the accused. He pleads that the revision is not maintainable and only an appeal could have been filed by the State.
5. I will first deal with the contention of Government counsel regarding the nature of section 335 as having seen the order of the Trial Court, there does not seem to be such course as provided in section 335 having been adopted by the learned Trial Court. I have already shown earlier the requirements of section 335. The language of that section is crystal clear and unmistakably confirms its mandatory nature. The use of the word 'shall' in sub-section (1) should suffice to display its stern spirit and there is nothing in that section or other allied sections to persuade on to read any discretion in the Court in that behalf.
6. It can be seen that section 328 Cr.P.C. provides that if during an enquiry a Magistrate has a reason to believe that the accused is of unsound mind he has to first enquire into this aspect, and if he is convinced about the insanity he has to stop the enquiry. Under section 329 Cr.P.C. a trial has to be mandatorily postponed on finding the accused to be insane. Section 330 Cr.P.C. suggests a course to be taken for the good care or safe custody of such accused. Section 331 to 333 Cr.P.C. provides that the inquiry or the trial as the case may be can be resumed only after the accused has fully recovered from his insanity. Thus the law takes care, nay, mandates that the accused must be of sane mind when he is tried. It is cardinal principle of criminal jurisprudence that the accused must understand the nature of charge and proceeding against him. Under section 84 I.P.C. insanity or lunacy is a complete defence to any criminal liability. While all these provisions offer protection to the interests of the accused, section 335 has its thrust mainly towards the interests of the society in which such "once upon a time lunatic" may live. The section at the same time seeks to protect such accused from harming himself. Surely the interests of society in general could not be allowed to be scarified at the alter of law. After all even if there is no criminal liability the accused has committed the act amounting to offence. It may be marked that where there is an acquittal solely on the ground of defence under section 84 I.P.C. the Court has to record a finding whether the act amounting to offence has been committed by the accused or not as provided by section 334 Cr.P.C. It would, therefore, be hazardous to let such person live in the society unconditionally as any recurrence of lunacy in case of such person may put to the society in which he lives to a serious jeopardy. There would be no guarantee that such person in fit of his lunacy would not repeat acts amounting to offences or would not harm himself. Provisions in section 335, therefore, aim at providing a safety valve so that both society at large and the accused himself are safeguarded from ghastly effects of a possible future recurrence of lunacy on the part of such accused. Therefore, considering the language of section 335, the purpose behind it and also its utility to the society in general and to the accused in particular there is no escape from the conclusion that it is a mandatory provision of law. The contention of Shri Mardikar that the provision is directory is clearly incorrect.
7. In this behalf, Shri Deshpande invited my attention to the reported decision reported in A.I.R. 1945 Nagpur 77, Provincial Govt. v. Krishna Gopala. The question came as to whether the Judge was right in straightway acquitting a person for offence under section 307 I.P.C. releasing him without following course directed by section 471 of 1898 Code. Bose, J., (as he then was) has considered section 471. It will be worthwhile to note that section 335 is pari-materia to section 471, though with some modifications. Section 335(1)(b) is one such modification, where by the custody of such person can be delivered to any relative or friend of such person. Such course obviously was not open at that time and, therefore, in the said reported decision that course is not suggested. What is held by Justice Vivian Bose (as he then was) was in the following terms :---
"The Legislature must have known this, when it enacted section 40 and 471. Under these sections, whenever the acquittal is based on the ground of insanity, the Court is bound" to order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the Provincial Government. The privilege of deciding whether the accused shall be released or not lies with the Provincial Government and not with the Court."
It would have been proper, therefore, for the trial Court to have followed the course as per section 335. The trial Court in not adopting that course has obviously erred in law.
8. Section 334 Cr.P.C. specifically provides that whenever any person acquitted on the ground that at the time when he has committed an offence, he was by reason of unsound mind incapacitated of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not. Having examined the judgment it is found that the learned trial Judge has specifically held that the offence of murder was committed by the accused. After a detailed discussion, the learned Judge has reached the conclusion that in fact accused and accused alone murdered his son and that the prosecution has proved this beyond any doubt. Therefore, there is compliance of section 334 Cr.P.C. However, the learned Judge should not have stopped there and should have proceeded with the course directed by section 335 Cr.P.C. He should have either made an order about safe custody of the accused in such manner as he thought fit. In the alternative, he should have ordered delivery of the accused to any relative or friend, if an application has been made in that behalf. It has come in the evidence that it was his father, who has come in the witness box to depose regarding the attacks of lunacy for years together and that such attacks used to be suffered by him in intervals. Under such circumstances, the learned Judge should have followed the mandatory course as directed by section 335 Cr.P.C.
9. Shri Mardikar's second contention is also incorrect. Herein the State is not challenging the acquittal in any manner. It was, therefore, not necessary for it to file an appeal. The State has challenged the course adopted by the Court after the acquittal. The contention of the learned Counsel that if the course directed by section 335 Cr.P.C. is adopted, it would amount to an inroad on the liberty of the accused is also not correct. Via this section the law provides for a safe custody of accused. He is not sent to a prison under this section. The use of the word 'Place' in section 335(1)(a) Cr.P.C. is noteworthy. Therefore, there is no question of jeopardising the liberty of the accused. It has already been shown that such course is necessary not only for the society in general but also for the accused.
10. The order will have, therefore, to be set aside to the limited extent and the trial Court will have to be directed to follow the course as per section 335. It shall of course be open to the trial Court to choose to proceed under section 335(1)(a) or (b) of Cr.P.C. However, the trial Court will have to strictly follow the provisions of that section. The trial Court may in that event either provide safe custody to the accused or upon application having made by the relative deliver the custody of the accused to such relative on such terms as are evident in section 335 Cr.P.C. The revision will have, therefore, be allowed in the above terms.