Madhya Pradesh High Court
Nanhu @ Ghanshyam vs The State Of Madhya Pradesh on 4 July, 2017
MCRC-9315-2014
(NANHU @ GHANSHYAM Vs THE STATE OF MADHYA PRADESH)
04-07-2017
Shri Manish Datt, learned Senior Advocate with Shri Yogesh
Soni, Advocate for the petitioner.
Shri B.D. Singh, learned Government Advocate for the
respondent-State.
Petitioner has filed this petition against the order dated 20/05/2014 passed by the trial court. By the aforesaid order the trial court ordered that the accused Nanhu @ Ghanshyam be sent to Mental Hospital, Gwalior for its treatment where he be treated and doctor of Mental Hospital, Gwalior shall submit report every month to the Court that whether the accused is mentally fit or not.
The accused was tried for commission of an offence punishable under Section 302 of the IPC. The allegation against the accused is that he had killed the deceased by gun shot. The accused was enlarged on bail on the ground that he was unsound and insane mind. The trial court observed that the case is pending since 2004 and the family members of the accused have not taken proper care and they did not provide proper treatment to the accused, hence, the trial is delayed. Consequently the accused be sent to the Mental Hospital, Gwalior.
Learned Senior counsel has submitted that the trial court has not followed mandatory provisions of Section 330 of Cr.P.C. before passing the order impugned, hence, the order is contrary to law.
Section 330 of the Cr.P.C. is in regard to release of person of unsound mind, this section reads as under:-
"330.Release of lunatic pending investigation or trial.- (1) Whenever a person is found, under section 328 or section 329, to be of unsound mind and incapable of making his defense, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not, may release him 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 Court or such officer as the Magistrate or Court appoints in this behalf.
(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate for Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, 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 Indian Lunacy Act, 1912 (4 of 1912).
(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 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 ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other persons;
(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."
Provisions of Section 330(2)(3) are mandatory. The proviso to section 330 (3)(b) authorises the Magistrate that he has power to send the accused for treatment, however proviso to section 330(2) prescribes that no order of the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with rules framed by the Government under Mental Health Act, 1987.
From the perusal of the order, it is clear that the trial court has not followed the aforesaid statutory provisions before passing the order impugned, hence, the order is contrary to law. Consequently, the this petition is disposed of with the following directions:-
Impugned order passed by the trial court is hereby quashed. The trial court shall pass appropriate order in accordance with the provisions of Section 330 of the Cr.P.C.
(S.K. GANGELE) JUDGE MISHRA