Allahabad High Court
Kanhaiya vs State Of U.P. on 31 May, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 53 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3417 of 2018 Applicant :- Kanhaiya Opposite Party :- State Of U.P. Counsel for Applicant :- Prashant Saxena Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. A second bail application brought by the applicant, Kanhaiya in Case Crime No.1007 of 2016, under Sections 498A, 304B, 201 IPC and Section 3/4 DP Act, PS Kotwali, District Farrukhabad confronted this Court with certain questions affecting the exercise of jurisdiction under Section 439 CrPC1 in relation to accused of unsound mind who has unsuccessfully invoked the jurisdiction of the Magistrate or the Sessions Judge under Section 330 of the Code.
2. It would be profitable to better appreciation of the questions about jurisdiction that have confronted this Court if a short survey of facts leading to those issues is made.
3. The applicant Kanhaiya filed Criminal Misc. Bail Application No.2513 of 2017 in case crime last referred under Section 439 of the Code after failing before the learned Sessions Judge, also under Section 439 of the Code, to secure bail. The bail application last referred which was a first before this Court on behalf of the applicant Kanhaiya came up for orders before Hon'ble Pratyush Kumar,J. on 26.07.2017. His Lordship was of opinion that the said application by the applicant who had claimed to be a person of unsound mind would not be maintainable under Section 439 of the Code at all and the applicant would have to invoke the provisions of Section 330 of the Code to seek his release on bail pending investigation or trial.
4. It was pointed out that Chapter XXV of the Code embodies special provisions made with regard to accused persons of unsound mind. Sections 328, 329 of the Code spell out the procedure to be followed in cases of enquiry and trial respectively in relation to such persons whereas Section 330 embodies provisions for bail to this very special class of accused. His Lordship, therefore, proceeded to dispose of the first bail application brought by the applicant under Section 439 of the Code as not maintainable super-added with an observation that appropriate proceedings may be taken by the applicant to stake his claim for bail in accordance with Section 330 of the Code. The accused having failed before the Sessions Judge with his application under Section 439 of the Code earlier in this case that is exclusively triable by Court of Sessions and which for Magistrate exercising jurisdiction under Section 437 of the Code is forbidden ground, made an application in the first instance to the Sessions Judge being Bail Application No.203 of 2017 invoking the provisions of Section 330 of the Code. The learned Sessions Judge dealt with application somewhat in accordance with the provisions of Chapter XXV by sending the applicant to the Mental Hospital, Varanasi for re-evaluation of his mental health. It appears that the learned Sessions Judge also took note of the fact that the earlier bail application on behalf of the applicant (under Section 439 of the Code) had been rejected on 06.03.2017 by learned Additional Sessions Judge, Court No.9, Farrukhabad.
5. The learned Additional Sessions Judge further took note of the fact that the doctor at the Mental Hospital, Varanasi had opined him to be an accused of unsound mind and, therefore, ordered that the accused be sent under a custody warrant to the Mental Hospital, Varanasi, where the Judge has noticed in his order that the accused-applicant was being treated. He opined that there was no good ground to release the applicant on bail and rejected the bail application brought by the applicant on occasion, under Section 330 of the Code, vide order dated 09.11.2017.
6. Confronted with the rejection of his bail application under Section 330 of the Code by the learned Sessions Judge, the applicant once again invoked the jurisdiction of this Court under Section 439 of the Code through the present application that was filed on 28.01.2018 as a first bail application, presumably much confounded by the baffling uncertainties of jurisdiction that the learned counsel was confronted with. This Court, however, by an order dated 31.01.2018 was of clear opinion that the present application being one under Section 439 of the Code in the present crime, where an earlier application also under Section 439 of the Code being Criminal Misc. Bail Application No.25132 of 2017 had been disposed of--may be as not maintainable and not on merits--the present application would, qualify as a second bail application.
7. The matter was sent back to the stamp reporter with a direction to ensure necessary corrections.
8. The stamp reporter by his report dated 09.02.2018 acknowledged the fact that the present application is a second application for bail, where necessary corrections to the cause title of the present application were made by the learned counsel for the applicant, styling it as a second bail application.
9. It was at this juncture that the Court was confronted with the cardinal issue as to whether the accused who had a special remedy to seek bail under Chapter XXV of the Code by invoking the provisions of Section 330 of the Code, having availed that remedy before the Sessions Judge, could switch back and take resort to the jurisdiction of this Court under Section 439 of the Code like any other accused or that in the scheme of Chapter XXV there being apparently no provisions for a concurrent jurisdiction with this Court, the order passed on his bail application by the Sessions Judge under Section 330 of the Code would have to be questioned through invocation of appropriate supervisory remedies such as a revision or an application under Section 482 of the Code or may be a petition under Article 227 of the Constitution of India2. There was still this deeper lurking question whether the provisions of Section 330 of the Code or for that matter the special provisions relating to persons of unsound mind excluded the remedy under Section 439 of the Code for them to avail or it would be just that, that the remedy under Section 439 of the Code would be available to a person of unsound mind where the prayer for bail would have to be judged on the parameters prescribed by Section 330 of the Code. If it were the latter case the present application under Section 439 of the Code would be maintainable, and, would require to be decided in accordance with what Section 330 of the Code prescribed.
10. The instinctive reaction to follow the well treaded course to look for the guidance of a pre-existing authority made this Court to hunt for the same. It, however, appears from whatever this Court was able to gather that this issue has laid unnoticed in some obscure corner to which judicial attention in the past has not been much invited or may be altogether unvisited. This Court, accordingly, proceeded to frame the following questions to be decided before a decision would be rendered on the present second bail application under Section 439 of the Code brought by Kanhaiya, the applicant here:
"1. Whether in a case where jurisdiction of the Magistrate or the Court under Section 330 Cr.P.C. is invoked in order to seek bail on the ground that the accused is a person of unsound mind, and the Magistrate or the court refuses to grant bail, an application under Section 439 Cr.P.C. to the court of Sessions or the High Court is maintainable?
2. Whether the order passed by a Magistrate on an application seeking release on bail pending investigation or trial by a person of unsound mind refusing bail can only be challenged through a criminal revision, an application u/s 482 Cr.P.C. or a petition under Article 227 of the Constitution, that is to say, through one or other remedies in the supervisory jurisdiction excluding the remedy of concurrent jurisdiction under Section 439 Cr.P.C. to the accused?"
11. Looking to the importance of the questions involved this Court by a subsequent order dated 13.03.2018 requested Sri Vinod Kant, learned Additional Advocate General, U.P. alongwith Sri Nitin Chaturvedi, learned AGA to assist the Court on behalf of the State. Sri Rajiv Lochan Shukla, Advocate was requested to assist the Court as an amicus curiae in the matter.
12. The matter was heard on 13.03.2018, 20.03.2018 and finally on 27.03.2018 when the orders were reserved.
13. In the context of the questions involved for consideration it is of indispensable importance to quote the provisions of Chapter XXV of the Code, that are encapsuled in the 11 Sections that are quoted in extenso:
"CHAPTER XXV--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 Stale Government may direct, and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to writing.
(1-A) 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.
(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 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 subsection (1A) is a person with mental 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 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-A) 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) 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 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.
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 obtain regular outpatient 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 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.
331. Resumption of inquiry or trial.--(1) Whenever an inquiry or a trial is postponed under section 328 or section 329, the Magistrate or Court as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial, and require the accused to appear or be brought before such Magistrate or Court.
(2) When the accused has been released under section 330, and the sureties for his appearance produce him to the officer whom the Magistrate or Court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence.
332. Procedure on accused appearing before Magistrate or Court.--(1) If, when the accused appears or is again brought before the Magistrate or Court, as the case may be, the Magistrate or Court considers him capable of making his defence, the inquiry or trial shall proceed.
(2) If the Magistrate or Court considers the accused to be still incapable of making his defence, the Magistrate or Court shall act according to the provisions or section 328 or section 329, as the case may be, and if the accused is found to be of unsound mind and consequently incapable of making his defence, shall deal with such accused in accordance with the provisions of section 330.
333. When accused appears to have been of sound mind.--When the accused appears to be of sound mind at the time of inquiry or trial, and the Magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act, which, if he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the Magistrate shall proceed with the case, and, if the accused ought to be tried by the Court of Session, commit him for trial before the Court of Session.
334. Judgment of acquittal on ground of unsoundness of mind.--Whenever any person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable 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.
335. Person acquitted on such ground to be detained in safe custody.--(1) Whenever 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.
(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of Sub-Section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).
(3) 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 satisfaction of the Magistrate or Court that the person delivered shall--
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.
(4) The Magistrate or Court shall report to the State Government the action taken under Sub-Section (1).
336. Power of State Government to empower officer in charge to discharge.--The State Government may empower the officer in charge of the jail in which a person is confined under the provisions of section 330 or section 335 to discharge all or any of the functions of the Inspector-General of Prisons under section 337 of section 338.
337. Procedure where lunatic prisoner is reported capable of making his defence.--If such person is detained under the provisions of Sub-Section (2) of section 330, and in the case of a person detained in a jail, the Inspector-General of Prisons, or, in the case of a person detained in a lunatic asylum, the visitors of such asylum or any two of them shall certify that, in his or their opinion, such person is capable of making his defence, he shall be taken before the Magistrate or Court, as the case may be, at such time as the Magistrate or Court appoints, and the Magistrate or Court shall deal with such person under the provisions of section 332; and the certificate of such Inspector-General or visitors as aforesaid shall be receivable as evidence.
338. Procedure where lunatic detained is declared fit to be released.--(1) If such person is detained under the provisions of Sub-Section (2) of section 330, or section 335 and such Inspector-General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum: and, in case it orders him to be transferred to an asylum, may appoint a Commission, consisting of a judicial and two medical officers.
(2) Such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.
339. Delivery of lunatic to care of relative or friend.--(1) Whenever any relative or friend of any person detained under the provisions of section 330 or section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of such State Government, that the person delivered shall--
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct;
(c) in the case of a person detained under Sub-Section (2) of section 330, be produced when required before such Magistrate or Court, order such person to be delivered to such relative or friend.
(2) If the person so delivered is accused of any offence, the trial of which has been postponed by reason of his being of unsound mind and incapable of making his defence, and the inspecting officer referred to in clause (b) of Sub-Section (1), certifies at any time to the Magistrate or Court that such person is capable of making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the magistrate or Court, and, upon such production the magistrate or Court shall proceed in accordance with the provisions of section 332, and the certificate of the inspecting officer shall be receivable as evidence."
14. At the out set, it may be stated that while there has been not much quarrel between the line of reasoning and possibly the answer to the questions between Sri Rajiv Lochan Shukla, learned amicus curiae and Sri Vinod Kant, learned Additional Advocate General, there has been a distinct stand taken by Sri Shukla where he has mooted the idea that the provisions of Chapter XXV of the Code, apparently complete in themselves, are to be read not always to the exclusion of this Court's jurisdiction under Section 439 of the Code, in the case of an accused of unsound mind.
15. The submission particularly is that the provisions of Chapter XXV of the Code are distinct, complete and exclusive in themselves for the special class of accused who are persons of unsound mind, and, a bail application on their behalf once rejected under Section 330 of the Code by the Magistrate or Court, wherever such an application is made, the remedy generally would be to invoke the supervisory jurisdiction of the Superior Court and not by switching jurisdiction and invoking the concurrent jurisdiction of the Court of Sessions and the High Court under Section 439 of the Code available to an accused not belonging to the special class. But, there could be exceptions to the Rule in the submission of Sri Shukla. He submits that while Chapter XXV is an exclusive Charter governing the subject matter of inquiry, trial, bail, discharge, procedure of trial and all that possibly would apply to the case of an accused of unsound mind coming in conflict with the law to the exclusion of all provisions relating to inquiry, trial, bail, discharge, conviction and sentence, including the provisions of Section 439 of the Code, that apply to accused generally, in a given case where the Court exercising powers under Section 439 finds an accused of unsound mind to be otherwise entitled to bail, say, on account of a patently false implication or the offence being not made out at all, would nevertheless have jurisdiction to deal with the bail application of an accused of unsound mind under Section 439, and, to order his release on bail like any other accused.
16. Sri Shukla submits that the aforesaid power would be available to this Court under Section 439 of the Code notwithstanding the all encompassing provisions of Chapter XXV in relation to an accused of unsound mind, to be applied in such cases generally, to the exclusion of all other provisions of the Code, including Section 439. In special and particular circumstances where the Court finds an accused of this special class entitled to bail under circumstances already enumerated, jurisdiction is there, and, power should be exercised for the essence of power to restore a person to his/her liberty available to the Court where he/she is clearly and prima facie wrongfully detained flows from the fundamental right to liberty guaranteed under Article 21 of the Constitution. He submits that it is not only the jurisdiction and power of this Court, in cases of patent and prima facie wrongful incarceration of a citizen of whatever class, and, howsoever challenged or disabled but also the duty of this Court, or any other Criminal Court exercising powers under Section 439, that are of the widest amplitude to restore such a person to his/ her liberty. The right of a person not to be incarcerated and his liberty curtailed, in the submission of Sri Shukla, would become a dead letter and a hollow promise in case this Court or any other court empowered under Section 439 of the Code were to refuse bail to this particular class of persons, even in most patent cases of wrongful incarceration, on ground that the law has created a special and different mode of redeeming liberty for them, all of which is embodied in Chapter XXV of the Code.
17. The submission of Sri Shukla is confined not only to an application of this Court's jurisdiction and powers under Section 439 of the Code but to an invocation of the much higher responsibility to enforce the guarantee of Article 21 of the Constitution to every citizen against the invasion of his liberty by the State contrary to law. He, however, qualifies all those submissions with the circumscribing statement that the power under Section 439 in relation to accused, who are persons of unsound mind, would be open to exercise where apparently the detention is illegal in the class of cases that he has referred to; generally speaking this class of persons have to be subjected to the provisions of Chapter XXV of the Code, like other matters, in the exercise of their right to seek bail. He is in agreement that in all those cases generally, where some extraordinary circumstance is not presented, an order of the Magistrate or the Court, on an application under Section 330 of the Code, would be amenable to the supervisory jurisdiction of this Court or any other forum available under law, say, the Court of Sessions under Section 397 of the Code or this Court under Sections 397/401 or 482 of the Code or Article 227 of the Constitution but not by invocation of jurisdiction under Section 439 of the Code.
18. Sri Vinod Kant, learned Additional Advocate General on the other hand is clear and categorical in his submission that so far as accused of the special class who are persons of unsound mind are concerned they are to be dealt with in the matter of bail exclusively in accordance with the provisions of Section 330 of the Code, and, once a Magistrate or the Court where they first apply refuse bail, as a matter of jurisdiction, the only option available to the accused is to invoke the supervisory jurisdiction of this Court or may be of the Sessions Court where available by way of revision or in any other case to this Court under Section 482 of the Code or under Article 227 of the Constitution. An accused of unsound mind in the submission of Sri Vinod Kant can only invoke the jurisdiction of Court under Section 330 and failing there be it the Magistrate or the Sessions Court, as the case may be, it is not open to him to apply under Section 439 of the Code in the first instance to the Sessions Judge, and, failing there, in the concurrent jurisdiction also under Section 439 to this Court.
19. Sri Vinod Kant, learned Additional Advocate General submits that there is not even that remote class of cases where there is patent wrongful incarceration of an accused belonging to the special class dealt with by Chapter XXV of the Code, may be incarceration even under an invalid law, that would entitle an accused to seek bail by invoking the jurisdiction of this Court or the Court of Sessions under Section 439 of the Code. He submits that on the face of it the right of the accused who is not of sound mind and is detained in connection with an offence, dubbed or questioned as patently false or in conflict with provisions of law or as one under a law that does not apply or even an invalid law in violation of the fundamental right of an accused under Article 21 of the Constitution, the accused would not have the right to resort to the provisions of Section 439 of the Code.
20. In the submission of Sri Vinod Kant, the right to liberty and a fortiori, the right to be enlarged on bail, in case of an accused of unsound mind, and, that of the accused who do not belong to this class are to be viewed from the vantage of their very different needs, capabilities, disabilities and risks that persons of this special class pose not only to others but to themselves also, and like considerations. In short, what is liberty to a person who is not mentally challenged on the one hand and to a person of unsound mind have completely different parameters; not on account of the offence they stand charged with but the completely variant mental faculties they are possessed of.
21. The differences in the dimensions of liberty to a person not in the special class of persons of unsound mind and once in that class emanates from something inseparable and intrinsic to the two different classes, and, is in no way, referable to the like offence they stand charged with.
22. The learned Additional Advocate General in order to elucidate the point made by him refers to the provisions of Sections 328, 329, 330, and, more particularly, Section 334 of the Code to submit that these provisions do not provide for trial and punishment to an accused of unsound mind, and, instead, lay down an integrated scheme in Chapter XXV where the accused of this class so long as he is incapable by reasons of unsoundness of mind or mental retardation of entering defence or at the time that he is alleged to have committed an offence incapable of knowing the nature of the act alleged by reasons of unsoundness of mind, not to be tried during time that he remains incapable of entering defence. In the case dealt with by Section 330(3), he is not at all to be tried or convicted. In cases covered by Sections 328 or 329 of the Code, the inquiry of trial may be resumed when normal mental faculty returns by virtue of Section 331, and, in cases governed by Section 334, no trial is to be held, conviction made or sentence pronounced at all; in that case, all that is required to be done is to return a finding to the effect whether the accused committed the act of which he stands charged or not, followed by the acquittal.
23. The learned Additional Advocate General points out that whether it be release on bail under Section 330(1) or discharge under Section 330(3) read with Section 328 or 329 of the Code or in an acquittal under Section 334 there is a common scheme running across the length and breadth of Chapter XXV of the Code about the release of an accused falling in this class. According to Sri Vinod Kant the mental health of the accused is to be evaluated, be it bail, discharge, or acquittal, and, thereafter the person charged depending on the outcome of the dimensions of his mental health is either to be kept in safe custody in such place and manner that the Magistrate or the Court thinks it fit or is to be delivered to any relative or friend of such person. There is also a general scheme running through the Chapter, that in cases where the person is to be released in the care or custody of a friend or relative, the friend or relative so entrusted shall undertake to properly take care of the accused and prevent him from doing any injury to himself or to any other person, and, to secure for the accused regular out-patient psychiatric treatment at the nearest medical facility. In cases of release after judgment of acquittal under Section 334 of the Code, there is this further requirement for a friend or relative to whom the care and custody of such an accused is entrusted, to produce the accused for inspection of such officer, and, at such time and place, as the State Government may direct. In addition, Section 339 specifically spells out duties of the relatives or friends in whose care an accused of unsound mind is released or given custody of under Section 330 or 335, that are enumerated in Section 339(1)(a)(b) & (c) of the Code.
24. The submission, therefore, of Sri Vinod Kant is that the entire gamut of provisions of Chapter XXV are designed to secure the very special needs of an accused who is of an unsound mind and for whom liberty needs care, safety and fair treatment and supervision rather than the unrivaled freedom associated with normal human behaviour.
25. He further submits, therefore, that whatever order is made once by the Magistrate or the Court under Section 330, it is to be taken as a final determination about the right of the accused in terms of a postponement of trial, resumption of the trial, discharge, acquittal, and, in the present context release on bail, subject only to challenge in the supervisory jurisdiction of a Superior Court, be it under Sections 397, 397/401, 482 of the Code or under Article 227 of the Constitution but in no event relating to this special class of the accused can the provisions of Section 439 be invoked, howsoever, unfounded, unlawful or illegal ex facie the determination might be.
26. Sri Vinod Kant in support of his submission that the provisions of Section 330 are mutually exclusive and once a determination, including decision about the bail plea of an accused of unsound mind is made in the first instance, the same has to be challenged in the supervisory jurisdiction of the Higher Courts and not by invoking the provisions under Section 439 has relied upon the law laid down by the Hon'ble Supreme Court in Sarfu Khan Vs. State of Jharkhand3; the decision of the Madras High Court in Vijay Pradap Singh Vs. State represented by the Inspector of Police4; the decision of the Bombay High Court in Amar Singh Vs. State of Maharashtra5; an unreported judgment of the Kerala High Court in Nafeesa Vs. State of Kerala6; and, the decision of the Chhattisgarh High Court in Sobran Singh Vs. State of Chhattisgarh7.
27. He submits that in all these cases where applications under Section 330 were dealt with in the first instance, the Superior Courts revisited those orders in exercise of powers either of criminal revision or on a petition under Article 227 of the Constitution or an application under Section 482 of the Code, but in no case resort was taken to the provisions of Section 439 before a Superior Court, upon failing in a motion for bail under Section 330(1) of the Code. He submits that though this point was not specifically raised or decided in any of the above cases but the consistent view discernible from these decisions is inescapable: that a bail plea under Section 330(1) once refused by the Magistrate or a Court cannot give right to the accused of the special class to move under Section 439 of the Code. He has to seek his repose in the provisions of Sections 397, 397/401, 482 or the constitutional remedy under Article 227 of the Constitution.
28. At this stage of the hearing, Sri Rajeev Lochan Shukla, learned amicus curiae has summed up and restated his stand, slightly modified and attuned to the more prevalent practice of challenging orders of refusal of bail by Courts of first instance in the supervisory jurisdiction of Superior Courts but his abiding fascination with the idea of this Court somewhere possessed of jurisdiction to grant of bail, even to this special class of accused whose motion has failed under Section 330(1) of the Code, on an application under Section 439, though much mellowed from the one initially put forward by him, in fact almost abandoned, is best expressed in his own words reproduced in verbatim from his written submissions, that read to the following effect:
"1. That the scheme of the Code of Criminal Procedure, 1973 in Chapter-XXV deals with provisions as to accused persons of unsound mind and Sections 328, 329 and 330 are specifically involved in the present proceedings. Chapter-XXXIII of Code of Criminal Procedure, 1973 relates to provisions as to bail and bonds, which are the general provisions concerning bail for persons facing trial. It may be submitted here that the necessity for engrafting is (sic in) separate chapter for dealing with all aspects of a person of an unsound mind facing trial and the intention of the legislature behind the same is to be taken notice of here. It is submitted that the provisions of chapter XXV of Code of Criminal Procedure, 1973 provide for a complete code for dealing with persons of unsound mind or lunatics as is evident from the scheme of the provisions themselves. Sections 330 of Code of Criminal Procedure, 1973 provides for release of person of unsound mind pending investigation or trial which is mandatory in nature subject to the safeguards provided under the Proviso to Sections 330(1) of Code of Criminal Procedure, 1973. It may be submitted here that the bail of a person found to be incapable of entering defence under Section 328 of 329 of Code of Criminal Procedure, 1973 can be refused only on the ground provided in the Proviso to Sections 330(1) of Code of Criminal Procedure, 1973 and the general provisions of bail to that extent stand excluded.
2. That Section 437 of Code of Criminal Procedure, 1973, which is the general provision for bail in cases of non-bailable offence, also provides for grant of bail to sick or infirm persons however, the class of persons incapable of making a defence due to unsoundness of mind or mental retardation would stand excluded as special provisions specifically dealing with bail to such class of persons has been incorporated in the of Code of Criminal Procedure, 1973, therefore, once the said procedure has been prescribed then the general provisions dealing with that particular aspect stand necessarily excluded. Sections 4 and 5 of the Code of Criminal Procedure, 1973, though dealing with other laws, can be still made use of in understanding the applicability of a special procedure vis-a-vis general procedure. Another aspect of the matter which may be taken note of is that the intention of the legislature can never be to curtail the fundamental right under Article 21 and 20 of the Constitution of India and the intention of the legislature would never be to incarcerate a person in prison where he is prevented by reason of unsoundness of mind to mount up a defence and prove his innocence, which leads to the stopping of the trial against him, then keeping him in prison would defeat the provisions of Article 20 and Article 21 of the Constitution of India as he would be penalized without trial and his right to life and personal liberty would stand seriously infringed.
As has been held recently in the case of Rakesh Kumar Paul Vs. State of Assam (2018) 1 SCC (Cri) 401, that while interpreting any statutory provision words used by legislature should be given their natural meaning and courts should be hesitant to add or subtract words from the statutory provision and it is only if natural meaning of words leads to an interpretation which is contrary to the object of the Act or makes the provision unworkable or highly unreasonable and arbitrary, Courts can either add or subtract words or reading down the statutes. When natural meaning or word is clear and unambiguous, no external aids should be used. Thus, it is clear that there is no ambiguity in the provisions of Chapter XXV of Code of Criminal Procedure, 1973 and the provisions of the Act are clear and unambiguous and they should be given their natural meaning and aas such the principles of general provisions of bail cannot be imported for the purposes of either refusing or granting bail to a person who falls within the category enshrined under Sections 328 and 329 of Code of Criminal Procedure, 1973.
3. Similarly in the fact situation of the case mentioned above, once the provision under Section 330 of Code of Criminal Procedure, 1973, which mandates grant of bail, bail has been refused, the remedy would be to challenge such order before a superior Court but not by invoking the general provisions of bail."
29. However, at this stage the learned counsel for the applicant, Sri Prashant Saxena has wholesomely borrowed the initial submissions of Sri Rajiv Lochan Shukla noticed in the opening part of the this judgment to urge that whatever be the scheme of Chapter XXV of the Code, and, whatever be its content, a person who is detained in a case that would manifestly not authorize his detention given the evidence or the complete non-application of the law to him or to the facts under which he is detained or in all cases where the applicant is detained under a law that is constitutionally invalid, an application under Section 439 can and must be entertained. He submits as initially urged by learned amicus curiae that the mandate of Article 21 of the Constitution applies to every person, whether of sound mental faculty or unsound. He submits on an added note that the fact that an accused of unsound mind cannot be convicted, has special privileges in the matter of investigation, bail, discharge etc. does not detract from the right of such an accused that he has in common with all other persons, not to be deprived of his liberty except in accordance with law.
30. He, therefore, submits that where no case prima facie of the applicant's involvement in the crime is made out, the applicant, like any other accused is entitled to a consideration of his claim to bail pending trial, and, as in this case that is precisely what has happened he is entitled to invoke the jurisdiction under Section 439 of the Code, where he would also be entitled to urge as one of his grounds the disability of unsoundness of mind.
31. Having given a thoughtful consideration to all that has been said by Sri Rajiv Lochan Shukla, learned amicus curiae, Sri Prashant Saxena, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General it appears that the two questions framed are so much the counterpart of each other that the answer to one, one way or the other would be an answer to the other by the same reasoning. Sri Rajiv Lochan Shukla, learned amicus curiae and the learned Additional Advocate General are not much at issue now. The submissions of the learned counsel for the applicant, Sri Prashant Saxena buttressed by whatever the learned amicus curiae had urged on the opening of his submissions are required to be tested on the parameters of law to find answers to the questions involved.
32. The submission that an accused of unsound mind is not to be deprived of his right under the general law to seek the liberty of bail pending trial and not to be incarcerated in prison or otherwise have his liberty curtailed on parameters different or higher than a person not of unsound mind has for its greatest source the bedrock of the right enshrined under Article 21 of the Constitution. In the submission of the learned counsel for the applicant that the provisions contained in Chapter XXV of the Code are not in the nature of a complete charter relating inter alia for grant of bail to a person of unsound mind but are in an additional privilege or right to persons of that class who are otherwise under a specific kind of a natural disability vis-a-vis accused who are not so disabled.
33. If this were the case then certainly an accused who is of unsound mind and comes to be detained in a case where there is no evidence against him or the law under which he is detained is not at all attracted to his case or may be the law is constitutionally invalid under which he is detained would certainly have the right to apply and seek bail under Section 439 of the Code like any other citizen.
34. A question that would tend to veer the answer in favour of the applicant would be the case of detention under a law of a person of unsound mind that is held to be unconstitutional. Would he have a right to seek back his liberty by a resort to a writ of habeas corpus? If the answer is in the affirmative, it would be a moot question why such a person in a case where he is detained absolutely without prima facie evidence against him or under a law that is not attracted to the facts or his case, not be entitled to seek release on bail by invoking the provisions of Section 439 of the Code.
35. No doubt he would have the option to apply under Section 330 and there is no issue about that but in this kind of a situation to hold that the remedy under Section 439 would not be available to an accused of this particular class because there is a special charter governing his liberty might be an interpretation that would prima facie leave the provisions of Chapter XXV of the Code to suffer challenge on grounds of invidious discrimination in violation of the fundamental rights under Articles 14 and 21 of the Constitution.
36. It is a well accepted principle of interpretation of statutes that any interpretation that exposes a statute to challenge as to its constitutionality is to be eschewed and one that safeguards the validity of it is always to be favoured. One of the authoritative expositions of this otherwise well settled principle of law has been enunciated by the Hon'ble Supreme Court in Japani Sahoo Vs. Chandra Sekhar Mohanti, (2007) 7 SCC 394, where it has been expressed thus:
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."
37. A possible answer to this question is to be found in the well established principle that a classification based on an intelligible differentia bearing a reasonable nexus with the object sought to be achieved, in no way offends the equality clause enshrined in Article 14 of the Constitution. Accused of unsound mind are decidedly a class identifiable by theirs specific needs, disability or definite abilities different from the other accused. Liberty to a person in possession of his sanity would not be liberty to a person of unsound mind. Liberty though generally in its widest possible and nascent statement is defined as freedom from restraint but in the context of the society, particularly, the modern fast-changing and ever-evolving society, that kind of a definition of liberty, is only an idea that is no more than the raw material from which the actual concept of liberty has evolved. It is anchored to the basic or nascent principle above stated but in its present form much modified, conditioned and refined Most of that defining the contours of liberty that have evolved overtime come from a resolution of conflict between the interest of the individual on the one hand and the collective interest of the society on the other and still more from the interest of the individual himself as part of the society.
38. The first part of resolution of conflict between individual and the collective interest emanates from what is generally understood as the negative concept of liberty which deals with the fundamental principle of freedom from restraint for the individual and then its fair balance with the collective interest of the society, and, the second, about the interest of the individual himself as a constituent of the society realizing his personality to its fullest; that is understood to be the positive concept of liberty. The society and the community, and, legally speaking the State are enjoined by Article 21 of the Constitution not only to ensure the limited and a nascent concept of securing the individual's liberty but also obliges itself to provide opportunity, remove disabilities, and, create circumstances where an individual may realize his personality to its fullest. In doing so the State caters to the positive aspect of liberty. It is for this reason that various rights that are not exclusively mentioned as a named fundamental right have been held to be a necessary concomitant of the right to life and liberty under Article 21 of the Constitution.
39. The idea of liberty in its most fundamental terms in the context of the modern Society and State has been stated by Harold J. Laski in his famous treatise, A Grammar of Politics8 in the following words:-
"By liberty I mean the eager maintenance of that atmosphere in which men have the opportunity to be their best selves. Liberty, therefore, is a product of rights. A State built upon the conditions essential to the full development of our faculties will confer freedom upon its citizens. It will release their individuality. It will enable them to contribute their peculiar and intimate experience to the common stock. It will offer security that the decisions of the government are built upon the widest knowledge upon to its members. It will prevent that frustration of creative impulse which destroys the special character of men. Without rights there cannot be liberty, because, without rights, men are the subjects of law unrelated to the needs of personality.
Liberty, therefore, is a positive thing. It does not merely mean absence of restraint. Regulation, obviously enough, is the consequence of gregariousness; for we cannot live together without common rules. What is important is that the rules made should embody an experience I can follow and, in general, accept. I shall not feel that my liberty is endangered when I am refused permission to commit murder. My creative impulses do not suffer frustration when I am bidden to drive on a given side of the road. I am not even deprived of freedom when the law ordains that I must educate my children. Historic experience has evolved for us rules of convenience which promote right living. To compel obedience to them is not to make a man unfree. Wherever there are avenues of conduct which must be prohibited in the common interest, their removal from the sphere of unrestrained action need not constitute an invasion of liberty."
40. Once it is well recognized that the State is not only forbidden from invading an individual's liberty in the sense of its negative connotation by providing under the law all rights enforceable through Courts by appropriate action to secure an individual's freedom from incarceration in prison pending trial on a charge, the State has an equal obligation of contributing positively to the individual's liberty by securing for him good health, education and like facilities that pave way for him to realize his potentialities to their fullest and live a life that is not a mere animal existence but a fully realized and accomplished one of a human being to the best of that person's innate capabilities. There is absolutely no difficulty in the considered opinion of this Court to provide for a special scheme in the matter of liberty of bail for a special class of persons like the present one under consideration.
41. It needs little debate that persons of the special class who are accused of unsound mind have very different needs, requirements, and, in fact, because of their differently abled mental faculties which amongst them in their own group may also stand vastly differentiated, the requirement of their liberty is completely at variance from that of an individual who does not fall into that class. What is liberty to an accused not of unsound mind would certainly not be the parameters of liberty to an accused of unsound mind. In the latter case liberty of bail is not stepping out free from the confining walls through the prison gate but much more.
42. Understood in terms of down right practicality a person of unsound mind depending upon the nature of his ailment, the extent of it, a cast out of prison into the open world or even into the hands of his family receiving him at the prison gate like any other undertrial may at best be restoration of his physical freedom alone. A person in this special class if left to move out into wide open world by reason of his mental faculties may bring to himself or to others physical or other kind of incalculable harm in ways not even imaginable in abstract terms. It may amount not to freedom from prison but rendering him homeless, without food and the basic care that he is in the need of. He would be no better where he is received by a family who are not fully cognizant of his special needs and possessed of all the requisite wherewithal necessary to him for the good care of his health. It may also lead to a situation where the liberated accused may in fact bring harm to himself and others or even to his family, again depending upon the nature of his ailment and its extent. Even if he does not do that, his condition that needs specialized medical attention may go absolutely unattended in the atmosphere of a non-understanding family, worsening the condition that such an individual is afflicted with.
43. In a situation where proceedings against an undertrial prisoner were quashed by the Delhi High Court, the prisoner being in very long detention, not of sound mind and unable to defend himself expressed a similar sentiment that has bothered this Court. In Charanjit Singh and National Human Rights Commission vs. State and others9, Hon'ble A.K. Sikri, J (as His Lordship then was) speaking for the Division Bench said:-
"12. We may mention at this stage that quashing of this FIR and criminal proceedings against Charanjit Singh was not a difficult decision to take in view of obvious factual background narrated above. Even learned counsel for the State did not have any serious objection. However, more difficult question which was bothering us was this; what would happen to Charanjit Singh once he is freed and he is no more an undertrial prisoner? While in judicial custody it is the duty and obligation of the State to take care of undertrial prisoners. This duty includes giving the undertrial prisoner proper medical treatment if he/she is suffering from any ailment. It is because of this reason the State had been discharging this duty in the present case by providing medical treatment and /or bearing the necessary expenditure. Once Charanjit Singh ceases to be an undertrial prisoner and there is no criminal case pending against him, State could wash it hands off. We did not want this consequence of quashing of FIR as his `freedom' to the undertrial prisoner would have denied him the medical treatment and put him in a worst position than what he has today. We feel relieved to find positive response given by the Government of NCT of Delhi to the problem and the approach suggested by it as contained in affidavit dated 26th February,2005 of Mr. Peter Bara, Deputy Secretary in the Home Department, Government of NCT of Delhi wherein it is, inter alia, stated that the Government is agreeable to take care of Charanjit Singh' medical needs even if criminal proceedings are quashed and would not be pending. With this, we feel relieved. We are confident that in so far as treatment of Mr. Charanjit Singh is concerned, due care and attention would be given in future. It was also our concern, and that of NHRC, that such cases should not recur."
44. Looked at from this angle the provisions of Chapter XXV of the Code present themselves as a boon and blessing, infact, an effort by the State to secure to an accused who is of unsound mind liberty that is innate to his requirement. In this connection reference may be made to the provisions that is the cynosure of attention in this case, that is to say, Section 330(1) of the Code. While on the one hand it categorically says that a person of unsound mind who pending investigation or trial is found under Section 328 or 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or the Court, notwithstanding the fact that he has a case on merits where bail may be taken or not, is enjoined to release him on bail circumscribes that mandate by obliging the Court to ensure that the accused is not suffering from unsoundness of mind or mental retardation that mandates in-patient treatment; and, further that if it does not require indoor treatment, a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and also to prevent from doing injury to himself or to any other person.
45. The aforesaid provisions carried in the proviso of Section 330(1) of the Code are in keeping with the State's obligation to ensure for an accused of unsound mind liberty of the kind that is best suited to his need and which is decidedly much different from what liberty means for a person who does not fall in this class.
46. Across the various provisions of Chapter XXV of the Code there is an unmistakable integrated scheme that provides for ensuring liberty and welfare through a procedure specifically designed to cater to the needs of the special class of accused governed by Chapter XXV of the Code. There are similar provisions in case of discharge, trial and even acquittal of an accused that are not strictly the subject matter of the issue involved in the present case but the unmistakable concern of the legislature to cater to the special needs of an accused of this kind and what liberty to such an accused would mean is difficult to miss.
47. A further look down the provisions of Section 330 shows that Sub-Section (2) of Section 330 envisages a case where the Magistrate or the Court finds that bail cannot be granted or finds that bail can be granted but an appropriate undertaking in terms of the proviso to the Section 330 of the Code is not forthcoming. The Magistrate or Court is enjoined by the provisions of Section 330(2) to 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. The appended proviso to Section 330(2) also mandates 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.
48. A perusal of the aforesaid provisions of Section 330(2), therefore, make it patently clear that there is an abiding legislative concern to secure to an accused of unsound mind all that would truly ensure a meaningful liberty to him and not just a liberation from the prison walls. In Section 330(3) there is a provision link up to the provisions of Section 328 or 329 of the Code, Section 328 being related to inquiry or investigation and 329 being related to the trial, to the effect that where under the provisions of Section 328 or 329 an accused is found 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 (release under this clause being by way of discharge). The attending proviso to Section 330(3)(a) of the Code that says that on the basis of a medical opinion or opinion of specialist, the Magistrate or the Court, as the case may be, shall decide to order discharge of the accused, as provided under Section 328 or 329 of the Code, and, 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 person. It may be noticed that there is no mention as to who would be required to give that security. This Court does not propose to venture into that question as Section 330(3) of the Code deals with the issue of discharge of an accused of unsound mind pending investigation or trial whereas in the present case this Court is concerned with the issue of bail pending investigation or trial. The question, therefore, hardly arises and is not being touched. Section 330(3)(b) of the Code, provides that 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.
49. This Court has surveyed the provisions of Section 330(3) though nothing beyond Sub-Sections (1) & (2) are directly in issue in this case for the purpose of highlighting that in the case of discharge too, the unmistakable thread of ensuring a meaningful liberty best suited to the needs of an accused of the special class is the clear and discernible guiding factor which the legislature seems to have in mind.
50. It may be mentioned that Section 330 of the Code does not deal with bail to an accused of unsound mind alone; rather, it deals with the release of a person of unsound mind pending investigation or trial, as the short title of the section shows; in fact, it deals with bail and discharge of an accused of unsound mind pending investigation or trial. At this stage the Court must turn to one submission earnestly made by Sri Prashant Saxena, learned counsel for the applicant as it certainly calls for an answer; and, that is, if by reason of the special needs of the class of accused who are of unsound mind, Chapter XXV of the Code has been incorporated a complete Charter governing inter alia the issue of grant of bail to accused of this class where the concept of bail on merits to all other accused who are not in this class embodied under Section 439 would have no application, what are the parameters on which, under Section 330(2) the Magistrate or the Court, as the case may be, who have been invested with jurisdiction are to form an opinion that the case is one in which bail cannot be granted.
51. He has invited the attention of the Court to the following words occurring in Sub-Section (2) of Section 330 that are being quoted again for ready reference in aid of the pointed argument. The relevant part of Sub- Section (2) of Section 330 reads as under:
"330. Release of lunatic pending investigation or trial.--(1) x x x (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 or 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 ).
(emphasis by Court) (3) x x x"
52. In the submission of Sri Saxena, learned counsel for the applicant once there is a discretion to the Magistrate or the Court given by sub-Section (2) to form an opinion that bail cannot be granted, it postulates assessment of the applicant's case for bail on merits, and, that would bring in the provisions of Section 439 of the Code or for that matter Section 437 depending upon whether the application under Section 330 in the first instance comes up before the Magistrate or the Court. He submits that there is a clear jurisdiction to evaluate the plea for bail even in a case of a person of unsound mind pending investigation or trial by virtue of sub-Section (2) of Section 330, and, there is no guide for the purpose, in the entire scheme of Chapter XXV of the Code. How that discretion to refuse bail is to be exercised? He further submits that though there is some guidance in exercise of discretion in the context of discharge under Sub-Section (3), there is no provision about the parameters on which discretion to refuse bail under sub-Section (2) is to be exercised. Sub-Section (3) relates to discharge and would, therefore, not to be relevance in the matter of bail. Sri Saxena, therefore, submits that the Magistrate or the Court while forming an opinion not to grant bail which a fortiori postulates the converse, that is to say, formation of opinion to grant bail, that opinion would be controlled, regulated and guided by the provisions of Sections 437 & 439 of the Code alone.
53. The aforesaid proposition had in fact been one of the considerations in the mind of this Court when the questions now being determined were formulated by the order dated 21.02.2018. Sri Rajiv Lochan Shukla, learned amicus curiae appearing in the matter has come with a clear stand that the opinion of the Magistrate or Court in deciding to refuse bail to an accused would not be guided by the provisions of Section 439 but controlled and guided by the provisions of sub-Section (1) of Section 330 of the Code. He submits that the principle of harmonious construction mandates an approach of reconciliation between the various clauses of a particular section in a statute, between different sections in the same chapter and all the provisions of a statute read together. He submits that the rule of harmonious construction postulates that various clauses in a particular section are not to be so construed as to render one of them nugatory or otiose. He submits that in case the submission of the learned counsel for the applicant were to be accepted the provisions of sub-Section (1) of Section 330 would either stand negated or it would bring about a situation where two mutually exclusive and incongruent criteria would be the inevitable result in the matter of determination of bail to an accused of unsound mind. While sub-Section (1) would speak about bail to all persons incapable of entering defence by reasons of unsoundness of mind or mental retardation irrespective of the nature and gravity of the offence, and, subject only to denial of bail on grounds and in the manner postulated by the proviso to Sub-Section (1), the provisions of Sub-Section (2) read in the manner suggested by Sri Saxena would bring in the concept of evaluation of the bail plea on merits under Sections 437 & 439, which is not at all germane to the scheme of Chapter XXV of the Code, and, would defeat its purpose; besides, as already said, render the provisions of Sub-Section (1) of Section 330 of the Code otiose.
54. In the submission of Sri Shukla the opinion of the Magistrate or the Court as postulated by Sub-Section (2) where bail cannot be granted bears reference to the parameters of the proviso postulated by the proviso to Sub-Section (1) of Section 330 that speaks about the two exception to the general rule of a blanket bail to all accused of unsound mind or suffering from mental retardation and that is where the accused is in need of treatment as an in-patient or where a friend or relative undertakes to obtain the regular out-patient psychiatric treatment from the nearest medical facility and to prevent the accused from doing injury to himself or to any other person. The opinion, in the submission of the learned amicus curiae, is to be formed by the Magistrate or the Court, as mentioned in sub-Section (2) specifically, on the issue whether in accordance with materials on record that includes medical advice, the accused needs in-patient treatment or about the suitability, incapability or may be, the genuineness of the undertaking given by a friend or relative, to obtain regular out-patient psychiatric treatment from the nearest medical facility, and, to prevent the accused from doing injury to himself or to any other person. The Court or Magistrate while forming opinion in the case where bail cannot be granted is limited to factors about the need of in-patient treatment or the suitability, capacity and bona fides of the friend or relative who undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent the accused from doing injury to himself or to any other person, alone as the relevant guiding factors to exercise discretion under Section 330 of the Code, and, not the merits of the case for grant of bail on the parameters postulated by Section 437 or 439 of the Code.
55. This Court is of opinion that the principle of harmonious construction certainly requires various clauses of a particular section and statute to be so construed that one does not impinge upon the other, nullify or contract conflict with the other. The construction suggested by Sri Saxena would certainly render the provisions of Sub-Section (1) of Section 330 nugatory and otiose as the Magistrate or the Court if permitted to exercise discretion under Sub-Section (2) of Section 330 to determine a bail plea of an accused who is of unsound mind on the same parameters as applicable to any other accused which decidedly is not the legislative mandate behind Section 330 or the entire scheme governing inquiry, trial, bail, discharge, acquittal and all these steps of criminal procedure in relation to persons of unsound mind who have been consciously classed apart from other accused under Chapter XXV of the Code would stand nullified. Thus, this Court finds and holds that the discretion to grant or refuse bail under Section 330(2) would be guided by the proviso to Section 330(1) of the Code alone.
56. It must be placed on record here that though the said question was not directly the one that was framed to be answered, an answer to this question is an inseparable component of the questions that have fallen for determination that primarily relate to the issue whether the provisions of Section 439 of the Code are available to an accused of unsound mind whose case is governed by Chapter XXV, in particular, Section 330 of the Code.
57. Much has been inquired into that and the answer to the question involved is almost at hand, the reasons to support those conclusions being already recorded hereinbefore, but before a formal opinion is expressed on those questions, this Court feels all that has so far been expressed, based on authority both binding and persuasive, and, reference to some of which has been made in the opening part of this opinion, may be briefly referred.
58. In the context of rejection of a bail application pending investigation or trial under Section 439 of the Code by the High Court in Sarfu Khan (supra) a second or subsequent application had been rejected by both the Sessions Judge and the High Court and a plea of unsoundness of mind was taken to the High Court which again rejected the application holding that the Trial Court would determine whether the trial should proceed or not taking into account the plea of unsoundness of mind. Against the said order the Hon'ble Supreme Court in paragraph 2 held thus:
"2. The bail application of the appellant was rejected by the Sessions Court in terms of order dated 29-9-2003, noticing, inter alia, that the High Court had earlier rejected his various applications seeking bail. The order of the Sessions Court was challenged before the High Court. By the impugned order, while dismissing the appellant's application, the High Court has rightly observed that the trial court would determine whether the trial should proceed or not. In case, the appellant is lunatic, the procedure as laid down in Chapter 25 CrPC has to be followed. It would be for the appellant to make an appropriate motion before the trial court. On such a motion being made, the matter would be decided, keeping in view the provisions of the said chapter of CrPC and, of course, if the trial court comes to the conclusion that the appellant is insane, the order in terms of Section 330 CrPC would be passed, without being influenced by the earlier rejection of the bail applications."
59. The Madras High Court in Vijay Pradap Singh (supra) in a very illuminating judgment on different aspects of law governing the decision of a bail application by a person of unsound mind held, amongst others, to the following effect that would be of the closest relevance to the present issue:
"25. The learned counsel for the petitioner would further submit that Section 439 Cr.P.C empowers the Court to grant bail to a person, who is suffering out of sickness. Mental illness is also a form of sickness. His continued incarceration whether in jail or in a jail like situation in a Mental Health Hospital keeping him away from his near and dear ones will aggravate his mental illness. In such circumstances, the Court can grant him bail under Section 330 Cr.P.C and hand over him to his relatives, who are ready to take care of him.
26. The learned counsel for the petitioner also emphasised that in the facts and circumstances of this case, at this juncture, the Court need not look into the nature of the offence he is alleged to have committed and now it shall consider the nature of the accused.
27. The learned Additional Public Prosecutor replied that the argument of the petitioner is outside the scope of jurisdiction of this Court under Section 397 Cr.PC.
28. As rightly contended by the learned Additional Public Prosecutor those arguments will be relevant in the bail petition filed under Section 439 Cr.P.C. Under Section 439 Cr.P.C., Sessions Court and High Court exercises original jurisdiction. They are Original orders. No question of canvassing the correctness of bail dismissal order passed by a Subordinate Courts, to be put forth before a Superior Court.
29. Bail jurisdiction of the Court under Chapter XXXV of Code of Criminal Procedure, 1973 is wide and vast. Consideration of period of incarceration, stage of investigation, availability of the accused for trial, offering of sureties by acceptable persons, consideration of his health condition are within the domain of the Court under its bail jurisdiction under Section 439 Cr.P.C. But under Section 397 Cr.P.C, this Court is doing post mortem work over the orders passed by the Subordinate Criminal Courts with a view to see that whether they suffers from any legality or propriety. Court cannot interchange Section 439 Cr.P.C for Section 397 Cr.P.C.
30. It is relevant here to note that the scope of this Court under Section 397 Cr.P.C. is very narrow but under Section 439 Cr.P.C, it is vast. Sections 436, 437 and 439 Cr.P.C are intended to release persons on bail and restore their liberty. Section 438 Cr.P.C. also has similar objective. They have to be viewed from the bedrock of Article 21, Constitution of India as they are very much concerned with securing the liberty of the individual. Section 330 Cr.P.C is also concerned with the personal liberty of the individual, but it is not as wide as Section 439 Cr.P.C. as the Court can exercise its jurisdiction under Section 330 Cr.P.C only under two parameters, namely; (i) the accused is a person of unsound mind and (ii) he is not fit to understand the Court proceedings, he is incapable of making his defence. And they are not relevant factors in granting bail under Section 439 Cr.P.C."
60. The Bombay High Court in Amar Singh (supra) while dealing with the issue whether a bail granted under Section 330 of the Code could be cancelled in exercise of powers under Section 439(2) of the Code in a case where a bail granted under Section 330, had been cancelled by the learned Sessions Judge, set aside that order holding that the Trial Court had no power to cancel bail granted under Section 330 in exercise of powers under Section 439 of the Code that relates to bails granted under Chapter XXXIII, and, not to bails granted under Chapter XXV of the Code, bringing into sharp relief the exclusive jurisdiction under Chapter XXV in regard to bails as a complete code, in relation to accused of unsound mind. It was held thus:
"5. I have carefully considered the rival submissions. It may be seen that Chapter XXV deals with the accused persons who are of unsound mind and who are incapable of making their defence. Section 330 in the said Chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. In Chapter XXV of the Code of Criminal Procedure, power of cancellation of bail is not specifically given to any Court. Unlike Chapter XXXIII wherein Sub-section (2) of Section 439 empowers the Courts to cancel the bail. But again the power given under Sub-section (2) of Section 439 is restricted to the bail granted under Chapter XXXIII only which clearly shows that the power of Sub-section (2) of Section 439 cannot be used for cancelling the bail granted under Chapter XXV."
61. Again of particularly illuminating worth is the judgment of Kerala High Court in Nafeesa (supra) where in the context of an application for release of her husband made by the petitioner under Section 330 of the Code the Magistrate rejected the prayer and the Sessions Judge in revision declined to interfere, the High Court on an application under Section 482 of the Code held:
"5. The short grievance of the petitioner urged before me now is that no proper enquiry has been conducted to come to a proper conclusion on the crucial aspect. The learned Magistrate must have ascertained the present state of mind of the husband of the petitioner from the expert to decide whether he is likely to cause injury to himself or to any other person. The petitioner and the sureties must have been given opportunity to satisfy the learned Magistrate of what they propose to do after getting the prisoner Crl.M.C.No. 3136 of 2007 into their custody. It is submitted that the petitioner and the sureties propose to take the accused to NIMHANS, Bangalore or any appropriate centre for treatment. The petitioner and the sureties have not been given opportunity to apprise the learned Magistrate of what they precisely propose to do after getting the petitioner released under Section 330 Cr.P.C.
6. I take note of the relevant inputs. When an application under Section 330 Cr.P.C. is made, the learned Magistrate has to alertly apply his mind to all inputs. Medical input as to whether the accused is likely to cause injury to himself or to others is certainly of crucial importance. The sureties also must be given opportunity to apprise the learned Magistrate of the steps that they propose to take after getting release of the accused.
7. The interests of the society at large has also got to be borne in mind. If it can be ensured that the accused can be prevented from doing injury to himself or to any other person and if such release is required for the proper treatment of the accused person, I have no hesitation to agree with the learned counsel for the petitioner that such request must be accepted. Sufficient factual inputs do not appear to be available. Crl.M.C.No. 3136 of 2007.
8. I am, in these circumstances, satisfied that the impugned orders can be set aside and the learned Magistrate can be directed to dispose of the petition afresh under Section 330 Cr.P.C. The learned Magistrate shall call for a report from the medical expert on the crucial aspects. The learned Magistrate shall also give the petitioner and the sureties an opportunity to apprise the court of the steps that they propose to take. Cognizant of all the relevant inputs, appropriate decision must be taken."
62. Once more in Sobran Singh (supra) a perusal of the decision of the Chhattisgarh High Court where not much was decided about the principles governing exercise of jurisdiction under Section 330 of the Code, let alone the issues concerned, here the orders denying bail by the learned Additional Sessions Judge refusing bail to the accused-applicant alleged to be of unsound mind, the High Court entertained a challenge and reversed the order denying bail in exercise of powers under Article 227 of the Constitution. The judgment would be known more as an illustration of an accepted practice that orders deciding applications under Section 330 are conventionally challenged through proceedings by invocation of review procedures and not by a resort to jurisdiction under Section 439 of the Code.
63. Consideration of all that has been said in the context of Section 330 of the Code in the various authorities noticed above including the guidance of their Lordships of the Hon'ble Supreme Court in Sarfu Khan (supra) while parameters for the exercise of powers under Section 330 of the Code have been laid down in explicit terms and there is also a clear assumption that the jurisdiction under Section 330 and Section 439 of the Code are mutually exclusive, there is no specific guidance or authoritative pronouncement on the precise issue whether from the rejection of an application under Section 330 by the Magistrate or the Court, the jurisdiction under Section 439 of the Code of a Superior Court, including the High Court can be invoked by an accused of unsound mind to be exercised on the added parameters of Section 330 or exclusively under Section 439 or the remedy against the refusal of an application under Section 330 by the Magistrate or the Court is by resort to the supervisory procedures under Sections 397, 397/401 of the Code, Section 482 or under Article 227 of the Constitution.
64. This Court in view what has been said hereinbefore is of opinion that the jurisdiction under Section 330, under Chapter XXV of the Code is generically different from that under Section 439. The scope, content, purpose and the object of bail contemplated under Sections 439 & 330 are generically different and mutually exclusive. The remedy of an accused of unsound mind is to make an application under Section 330 to the Court entitled by law in the first instance to entertain the same on merits, be it the Magistrate or the Court, the Court invariably and almost certainly being the Sessions Judge in context of Section 330 of the Code. In the event of failure in the Court of first instance whether it be the Magistrate or the Sessions Judge, the remedy to an accused of unsound mind whose application under Section 330 of the Code has failed would be to invoke the supervisory jurisdiction of Superior Courts under Sections 397, 397/401, 482 of the Code or if so advised, under Article 227 of the Constitution, but not by way of an application invoking jurisdiction under Section 439 of the Code. Thus, no application under Section 439 of the Code would be maintainable in the case of an accused of unsound mind whose application under Section 330 has been rejected by the Magistrate or the Court in the first instance.
65. Thus, question no.1 is answered in the negative and question no.2 is answered in the affirmative.
66. This Court places on record profound appreciation for the very valuable and erudite assistance rendered by Sri Rajiv Lochan Shukla, learned amicus curiae and to Sri Vinod Kant, learned Additional Advocate General, UP in enabling this Court to arrive at the conclusions that are recorded here. This Court further places on record its deep sense of appreciation to the very fair, keen and thorough assistance rendered by Sri Prashant Saxena, learned counsel for the applicant, all through the course of hearing of this matter.
67. Since this Bench is no longer seized with determination with regard to bail applications, let this bail application be placed, if possible, in the next cause list for orders before the appropriate Bench alongwith this opinion.
Order Date :-31.05.2018 Shahroz/ Anoop