Calcutta High Court (Appellete Side)
Mrinmoy Chandan Dutta @ Tubai vs The State Of West Bengal on 5 July, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 283 of 2022
Mrinmoy Chandan Dutta @ Tubai
Versus
The State of West Bengal
For the Petitioner : Mr. Soubhik Mitter, Adv.
Mr. Litan Maitra, Adv.
Mr. Kalyan Kr. Bhattacharya, Adv.
Ms. Rajnandini Das, Adv.
For the State : Mr. Madhusudan Sur, Adv.
Mr. Dipankar Paramanick, Adv.
Heard on : 08.04.2024
Judgment on : 05.07.2024
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Ajay Kumar Gupta, J:
1.This instant Criminal Revisional application has been filed by the petitioner through his representative under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 challenging the propriety, legality and correctness of an order dated 26.11.2021 passed by the learned Additional Sessions Judge, 1st Court, Bongaon, North 24 Parganas in connection with S.T. No. 2 (7) 2015, New S.T. No. 503/2015 [corresponding to S.C. No. 20 (3) 2014] arising out of Bongaon Police Station Case No. 855/2013 dated 26.11.2013 under Sections 498A/406/302/120B/34 of the Indian Penal Code, 1860 and Sections 3/4 of the Dowry Prohibition Act, 1961 (corresponding to G.R. Case No. 2737/2013), thereby fixing a date on 05.01.2022 for evidence and appearance of all the four accused persons (including the petitioner herein) and directed the surety/guardian/parents of the petitioner to procure his attendance in person before the learned Court on 05.01.2022.
2. It is relevant to mention here that Mr. Malay Chandan Dutta being the father and legal representative of the accused/petitioner Mrinmoy Chandan Dutta @ Tubai contended that the petitioner herein suffering from Schizophrenia and he is undergoing medical treatment for the same. An application under Sections 328/329 of 3 the Code of Criminal Procedure, 1973 dated 15.07.2015 was preferred on behalf of the petitioner before the learned Judge wherein it was averred that the petitioner was suffering from mental instability/lunacy/Schizophrenia since 2006 and he was undergoing treatment for the same. In the said application, a prayer was made on behalf of the petitioner that the proceedings against him be deferred as he was incapable of putting forth his defence on account of his mental disorder. By an order dated 29.07.2015, the learned Judge was pleased to reject the application dated 15.07.2015 on the ground that the petitioner had not taken plea of mental illness in his bail application (being C.R.M. No. 6267 of 2014) before the Hon'ble High Court and that he had not produced any document indicating his mental illness or the treatment he was undergoing.
3. It is the case of the petitioner that the petitioner preferred a criminal revisional application being CRR 3132 of 2015 before this Hon'ble Court, thereby challenging the order dated 29.07.2015 passed by the learned Judge and prayed for liberty to produce all the medical documents before the learned trial Court. By an order dated 18.11.2015 passed in CRR 3132 of 2015, the Co-ordinate Bench of this Hon'ble Court was pleased to grant liberty to the petitioner to place all the documents regarding his medical treatment before the 4 learned Trial Court within a period of four weeks from the date of order passed in CRR 3132 of 2015. However, vide an order dated 16.01.2016, the learned Judge was once again pleased to reject the plea of mental illness of the petitioner since he had failed to produce any document to corroborate the same and, thus, failed to comply with the order dated 18.11.2015 passed by this Hon'ble Court in CRR 3132 of 2015. Accordingly, the petitioner preferred another revisional application being CRR No. 390 of 2016 before this Hon'ble Court, thereby challenging the order dated 16.01.2016 passed by the Learned Judge. By an order dated 11.02.2016 passed in CRR No. 390 of 2016, a Co-ordinate Bench of this Hon'ble Court was pleased to set aside the impugned order dated 16.01.2016 and was further pleased to direct the learned Judge to consider the medical documents filed by the petitioner and dispose of the application dated 15.07.2015 within a period of 2 weeks.
4. On 01.03.2016, the petitioner submitted his medical documents before the learned Judge. Thereafter, on 09.03.2016, the learned Judge was pleased to direct the Chief Medical Officer of Health, North 24 Parganas, Barasat to examine the petitioner and submit a report. In view of the said direction, the Chief Medical Officer of Health, North 24 Parganas, Barasat submitted a report on 5 29.03.2016 bearing Memo No. CMOH (NPG)/1489 dated 28.03.2016, before the Learned Judge. The said report was accompanying by a report of a Psychiatrist (Dr. Rita Sarkar) and a report by a Psychologist (Dr. Moumita Mondal). The report indicates that the petitioner had been examined by a Board of Doctors of the District Hospital, Barasat on 18.03.2016 and his behaviour was found severely disorganized. The learned Judge thereupon directed that the medical officers be examined and their statements be recorded.
5. On 12.04.2016, Dr. Pralay Acharya, i.e. the Chief Medical Officer of Health, North 24 Parganas, Barasat was examined as P.W. 1 and in his deposition he stated that upon examining the petitioner, he had arrived at the inference that the petitioner was not psychologically sound and the petitioner was required to be referred to a psychiatrist or clinical psychologist for care, treatment and prognosis. At the same time, Dr. Moumita Mondal (Psychologist) was examined as P.W. 2 and, in her deposition, she stated that the petitioner ought to be referred to a psychiatrist. On 04.05.2016, Dr. Rita Sarkar (Psychiatrist) was examined as P.W. 3 and, in her deposition, she stated that the petitioner had indeed shown psychotic features and disorganized behaviour and that she referred the petitioner to be admitted in a mental hospital to ascertain his mental 6 fitness. Subsequently, on 11.05.2016, Dr. Subrata Mondal, i.e. the Superintendent of North 24 Parganas District Hospital was examined as P.W. 4 and, in his deposition, he stated the petitioner had indeed shown abnormal features.
6. After examining all the four P.Ws., the learned Judge, vide order dated 01.07.2016, was directed the petitioner be kept under observation of the Superintendent of Pavlov Mental Hospital for a period of three months to ascertain the mental disorder of the petitioner. During observation, the petitioner complained of cardiac problems and had to undergo surgery. On that account, the Superintendent of Pavlov Mental Hospital had discharged the petitioner. However, the learned Judge found this act of the Superintendent of Pavlov Mental Hospital to be suspicious and in contravention of the order dated 01.07.2016 as mentioned hereinabove. Therefore, by an order dated 28.09.2016, the learned Judge was pleased to issue warrant of arrest against the Superintendent of Pavlov Mental Hospital.
7. Being aggrieved by and dissatisfied with the said order, the petitioner further preferred another revisional application being CRR No. 3531 of 2016 before this Hon'ble Court, challenging the impugned order with regards to issue of warrant of arrest dated 7 28.09.2016 passed by the learned Judge. By an order dated 26.10.2016, Co-ordinate Bench of this Hon'ble Court was pleased to stay the operation of the impugned order dated 28.09.2016 and all further proceedings in connection with the instant case for a period of four weeks. Further, by judgment dated 15.02.2018, this Hon'ble Court was pleased to dismiss CRR No. 3531 of 2016 and was further pleased to vacate all stay orders. Thereafter, vide order dated 02.12.2016, the learned Judge was pleased to direct the petitioner be produced before the Superintendent of Pavlov Mental Hospital on 07.12.2016.
8. By an order dated 18.04.2017, the learned Judge was pleased to direct the petitioner be examined under the supervision of the Director of Health Services, West Bengal and was further pleased to direct the Director of Health Services, West Bengal to submit a report regarding the progress of the observations made by the medical officers at an interval of 15 days on and from 25.04.2017. The propriety of the order dated 18.04.2017 was challenged by the petitioner before this Hon'ble Court in another revisional application being CRR No. 1387 of 2017. By an order dated 24.04.2017, this Hon'ble Court was pleased to uphold the order passed by the learned Judge on 18.04.2017.
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9. On 19.12.2017, Amit Kumar Bhattacharya (Professor, Department of IPGME & R) was examined and in his deposition he stated that the petitioner was of unsound mind and was not in the position to stand the trial of the instant case. On the same date, Dr. Shikha Mukhopadhyay (Associate Professor, Department of Psychiatry, IPGM & ER) and Dr. Subir Hazra Chowdhury (RMO - cum- Clinical Tutor, IPGMER) were examined and in their depositions, they stated that the petitioner was not in the position to stand trial and that he was required to undergo prolonged treatment. On the same date, Dr. Prasanta Kumar Das (Professor Associate, Department of Psychiatry, IOP, IPGM & ER) was examined and in his deposition, he stated that the petitioner was suffering from paranoid schizophrenia and he was not in the mental state to face the trial of the instant case and, further, that his chances of improvement were meagre and that he was advised to undergo prolonged treatment on a regular basis. At the same time, Dr. Indranil Saha (Associate Professor, Department of Psychiatry, IOP, IPGM & ER) was examined and in his deposition, he stated that the petitioner was not in the mental state to face trial of the instant case.
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10. After considering the opinions of the different doctors and depositions made by them, vide order dated 19.12.2017, the learned Judge was also observed that the petitioner was not fit to face trial and, therefore, the Court must proceed with the trial of the co- accused persons, namely, Malay Chandan Dutta, Madhumita Dutta and Moumita Sarkar (Dutta). Learned Judge was further pleased to direct the learned advocate representing the petitioner to make arrangements for his follow-up treatment and appearance before the Medical Board within a period of 3 months. In fact, the Government of West Bengal, Institute of Psychiatry - COE has certified on 08.12.2021 that the petitioner is suffering from mental retardation with schizophrenia and he is unfit for normal work.
11. Prior to certification dated 08.12.2021, the learned Judge, by an order dated 26.11.2021, was pleased to fix on 05.01.2022 for evidence and appearance of all the four accused persons, namely, petitioner herein, Malay Chandan Dutta, Madhumita Dutta and Moumita Sarkar (Dutta) and was further pleased to direct that summons be issued upon them. By the selfsame order, the learned Judge was also pleased to direct the surety/guardian/parents of the petitioner to procure his attendance in person on 05.01.2022 though the petitioner is suffering from schizophrenia and he has placed on 10 record the documents indicating his mental illness and the treatment he has been undergoing treatment for the same. The petitioner was found to be of unsound mind, he cannot be placed on trial. The learned Judge has passed the impugned order dated 26.11.2021 in most mechanical and arbitrary manner without taking into consideration the mental fitness of the petitioner. Accordingly, the impugned order dated 26.11.2021 is otherwise bad in law and is liable to be set aside in the interest of justice. The petitioner's prayer is that case may be deferred from the other accused persons in connection with S.T. No. 2 (7) 2015, New S.T. No. 503/2015 [corresponding to S.C. No. 20 (3) 2014] arising out of Bongaon Police Station Case No. 855/2013 dated 26.11.2013 under Sections 498A/406/302/120B/34 of the Indian Penal Code, 1860 and Sections 3/4 of the Dowry Prohibition Act, 1961 (corresponding to G.R. Case No. 2737/2013). His case may be dealt with separately after his recovery under Sections 328/329 of the Cr.PC.
12. During the pendency of this case on behalf of the petitioner, one supplementary affidavit has been filed contending therein that due to his mental illness, the petitioner was unable to appear before the learned Judge on 05.01.2022 and the petitioner has challenged 11 the legality, propriety and correctness of the order dated 26.11.2021 in this instant revisional application.
13. During pendency of the present revisional application, vide order dated 09.03.2022, the learned Judge was pleased to fix a date on 06.05.2022 for production of the petitioner along with his medical papers. On 06.05.2022, the petitioner could not be produced before the learned Judge as he had gone missing and was not traceable. Therefore, on 01.06.2022 was fixed for the production of the petitioner. On 01.06.2022, the petitioner was produced before the learned Judge. Vide and order dated 01.06.2022, the learned Judge was pleased to direct that the petitioner be taken to custody on the ground that he has not been receiving proper treatment.
14. On 02.06.2022, a prayer was made by the Superintendent of Bongaon SD Correctional Home for transferring the petitioner to Dum Dum Central Correctional Home for better medical treatment. By an order dated 02.06.2022, the learned Judge was pleased to allow such prayer and was further pleased to direct that a copy of the order be sent to the Superintendent of Dum Dum Central Correctional Home for taking necessary action regarding the petitioner's treatment and report by 17.06.2022.
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15. On 10.06.2022, the learned Judge received compliance report from the Controller of SD Correctional Home Bongaon and from the Director of Institute of Psychiatry. On 16.06.2022, the learned Judge received a medical board report from the Superintendent of Dum Dum Central Correctional Home. Vide orders dated 10.06.2022 and 16.06.2022, the learned Judge was pleased to fix on 17.06.2022 for appearance/production of the accused persons.
16. In the meantime, the petitioner preferred an application for bail before this Hon'ble Court under Section 439 of the Code of Criminal Procedure, 1973 being C.R.M. (DB) No. 1592 of 2022. By an order dated 13.06.2022 passed in connection with C.R.M. (DB) No. 1592 of 2022, this Hon'ble Court was pleased to enlarge the petitioner on bail upon furnishing a bond of Rs. 10,000/- with two sureties of like amount each, one of whom must be local to the satisfaction of the learned Additional Chief Judicial Magistrate, Bongaon, North 24 Parganas on condition that the petitioner shall not intimidate witnesses or tamper with evidence in any manner whatsoever.
17. On 06.06.2022, the petitioner (while in judicial custody) was admitted to RG Kar Medical College and Hospital, where he was undergoing treatment for his mental ailment, and as a result thereof, 13 the petitioner could not appear before the learned Judge on 17.06.2022.
18. On 17.06.2022, the learned Judge received a report dated 15.06.2022 from the Director of Institute of Psychiatry. The report dated 15.06.2022 indicates that a medical board was constituted to ascertain the mental fitness of the petitioner to adduce his defence in the instant case. The report further indicates that, "Indian Disability Evaluation and Assessment scale was applied and a score of 19 was obtained indicating Severe Level of Disability (95%) at present. As at present the patient lacks ability to understand information properly, cannot appreciate the consequence of his action and lacks ability to communicate decision appropriately, he is not capable of making defence on his behalf and so not fit to stand trial." The learned Judge was pleased to record the aforementioned findings in the order dated 17.06.2022.
19. The petitioner and his family members were unaware of the order passed by this Hon'ble Court on 13.06.2022 in CRM (DB) No. 1592 of 2022 (vide which the petitioner was granted bail by this Hon'ble Court) and, therefore, an application for bail on behalf of the petitioner was moved before the learned Judge on 17.06.2022. Vide an order dated 17.06.2022, the learned Judge was pleased to reject 14 the prayer for bail of the petitioner and was further pleased to direct that the petitioner be admitted to the Institute of Psychiatry till his recovery and, as such, the proceeding against the petitioner be postponed. Vide the selfsame order, the learned Judge was also pleased to direct that the trial be continued against the co-accused persons, namely, Malay Chandan Dutta, Madhumita Dutta and Moumita Sarkar (Dutta) except the petitioner since the petitioner requires care, protection, education, training and treatment in view of Sections 328, 329 and 330 of the Code of Criminal Procedure, 1973 and the provisions of the West Bengal Mental Health Act, 1987. The learned Judge was also pleased to direct the Superintendent of Dum Dum Central Correctional Home to collect report from the concerned institute from time to time regarding the treatment of the petitioner and submit such report before the learned Judge as and when the learned Judge would require the production of the accused person. Furthermore, 22.07.2022 has been fixed for production/appearance for the accused person.
20. On 24.06.2022, the order dated 13.06.2022 passed by this Hon'ble Court in connection with C.R.M. (DB) No. 1592 of 2022 was placed on record by the learned Judge and vide an order passed on 24.06.2022, the learned Judge was pleased to direct that the 15 petitioner be released on bail in terms of the order passed by this Hon'ble Court and was further pleased to direct the petitioner to be physically present in Court on 22.07.2022.
21. Actually, in compliance with the order dated 13.06.2022 passed by this Hon'ble Court in CRM (DB) 1592 of 2022, the petitioner was unable to arrange the local surety to furnish a bond of Rs. 10,000/- to the satisfaction of the learned Additional Chief Judicial Magistrate, Bongaon, North 24 Parganas for his release. The petitioner was also unfit to furnish bond for his release. Under such circumstances, the petitioner preferred an application being CRAN 1 of 2022, praying for modification of the condition of bail so imposed by this Hon'ble Court vide CRM (DB) 1592 of 2022.
22. By an order dated 01.07.2022 passed in CRAN 1 of 2022 arising out of CRM (DB) 1592 of 2022, this Hon'ble Court was pleased to modify the order dated 13.06.2022 passed in CRM (DB) No. 1592 of 2022 to the extent that the petitioner was allowed to furnish the bond through his father, i.e. Malay Chandan Dutta. Further, this Hon'ble Court was also pleased to direct that in the order dated 13.06.2022, the words 'with two sureties of like amount each, one of whom must be local' be read as 'with two registered sureties of like amount each'.
16SUBMISSION ON BEHALF OF THE PETITIONER:
23. Learned Advocates appearing on behalf of the Petitioner submitted that vide order dated 17.06.2022, the learned Judge himself observed in his order that the report goes to show that "Indian Disability Evaluation and Assessment scale was applied and a score of 19 was obtained indicating Severe Level of Disability (95%) at present". As at present the patient lacks ability to understand information properly, cannot appreciate the consequence of his action and lacks ability to communicate decision appropriately, he is not capable of making defence on his behalf and so not fit to stand trial.
24. The learned Judge finally observed the question of splitting up the case record does not necessary and the trial of this case be continued as against the co-accused persons, namely, Malay Chandan Dutta, Madhumita Dutta and Moumita Sarkar (Dutta) except the petitioner since the petitioner requires care, protection, education, training and treatment in view of Sections 328, 329 and 330 of the Code of Criminal Procedure, 1973 and the provisions of the West Bengal Mental Health Act, 1987 and directed the Superintendent of Dum Dum Central Correctional Home to take necessary arrangements by way of admitting accused Mrinmoy Chandan Dutta in jail custody. It was further directed the concerned 17 Superintendent of Dum Dum Central Correctional Home to collect the report from the concerned Institute from time to time regarding treatment and submit report before the learned Court as and when the learned Court will ask for production of accused. He is to see that no inconvenience is caused of such treatment and/or their shall be any violation of the Court order on any grounds whatsoever and finally, the accused Mrinmoy Chandan Dutta to JC till next day as such, such order is also liable to be set aside.
SUBMISSION ON BEHALF OF THE STATE:
25. On the other hand, learned counsels appearing on behalf of the State submitted that as per the evidence of the several doctors and medical documents supplied by the petitioner, it is the fact that the petitioner is suffering from mental illness. Under such circumstances, he is unable to understand the proceeding. So, it would be appropriate to defer or postpone his case from further proceedings and proceed with other accused persons in accordance with law till he would be recovered or necessary order may be passed.
DISCUSSIONS, ANALYSIS AND CONCLUSION BY THIS COURT:
26. Heard the rival submissions and contentions of the parties and on perusal of the record, it would be appropriate to refer the 18 Sections 328 to 333 of Cr.PC, by which the accused person, who is unsound mind or sound mind, the procedure ought to be followed by the learned Court for inquiry and its trial. Those Sections are as under:
"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 State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing. 1. Subs. by Act 45 of 1978, s. 27, for "Magistrate" (w.e.f. 18-12- 1978). [(1A) 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. 2 [(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of 19 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 sub-section (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 20 postpone further proceedings in the case. 3 [(1A) 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.] 4 [(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 21 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 out-patient 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 22 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 of section 328 or section 329, as the case may be, and if the accused is found to be of unsound mind and consequently incapable making his defence, shall deal with such accused in 1.
Subs. by Act 5 of 2009, s. 27, for section 330 (w.e.f. 31-12-2009). 128 accordance with the provisions of section 330.
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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."
27. Upon careful perusal of the aforesaid provisions, it appears 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 State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing. Such exercise has been done by the learned Judge and examined all together four doctors, namely, Dr. Pralay Acharya, i.e. the Chief Medical Officer of Health, North 24 Parganas, Barasat, examined as P.W. 1, Dr. Moumita Mondal (Psychologist), examined as P.W. 2, Dr. Rita Sarkar 24 (Psychiatrist), examined as P.W. 3 and Dr. Subrata Mondal, i.e. the Superintendent of North 24 Parganas District Hospital examined as P.W. 4. Wherefrom it appears all the doctors have said petitioner was not psychologically sounded, had indeed shown psychotic features and disorganized. Petitioner was required to be referred to a psychiatrist or clinical psychologist for care, treatment and prognosis. At the same time, on 19.12.2017, Amit Kumar Bhattacharya (Professor, Department of IPGME & R) was examined and in his deposition he stated that the petitioner was of unsound mind and was not in the position to stand the trial of the instant case. On the same date, Dr. Shikha Mukhopadhyay (Associate Professor, Department of Psychiatry, IPGM & ER) and Dr. Subir Hazra Chowdhury (RMO -cum- Clinical Tutor, IPGMER) were examined and in their depositions, they stated that the petitioner was not in the position to stand trial and that he was required to undergo prolonged treatment. On the same date, Dr. Prasanta Kumar Das (Professor Associate, Department of Psychiatry, IOP, IPGM & ER) was examined and in his deposition, he stated that the petitioner was suffering from paranoid schizophrenia and he was not in the mental state to face the trial of the instant case and, further, that his chances of improvement were meagre and that he was advised to undergo prolonged treatment on a regular basis. At the same time, Dr. 25 Indranil Saha (Associate Professor, Department of Psychiatry, IOP, IPGM & ER) was examined and in his deposition, he stated that the petitioner was not in the mental state to face trial of the instant case. However, he was not released on bail by the learned Trial Court even on such mental conditions and subsequently, the Hon'ble High Court released on bail subject to condition that upon furnishing a bond of Rs. 10,000/- with two sureties of like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate, Bongaon, North 24 Parganas. Thereafter, the learned Trial Court granted bail to him. But again, Learned Trial Court directed to produce before the Court, which is apparently bad in law.
28. The petitioner is one of the accused persons in connection with S.T. No. 2 (7) 2015, New S.T. No. 503/2015 [corresponding to S.C. No. 20 (3) 2014] arising out of Bongaon Police Station Case No. 855/2013 dated 26.11.2013 under Sections 498A/406/302/120B/34 of the Indian Penal Code, 1860 and Sections 3/4 of the Dowry Prohibition Act, 1961 (corresponding to G.R. Case No. 2737/2013) and the investigation of the said case ended in filing charge sheet and the trial has been commenced before the Court of Learned Additional District and Sessions Judge, Bongaon, North 24- Parganas.
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29. From the perusal of entire evidence of the P.Ws. 1 to 4, other doctors and observations made by the learned Trial Court, it is not disputed that the present petitioner is suffering from mental disorder with 95% mental disability. In spite of such observation, it is very surprising that the learned trial Judge was asked to produce and he was taken into custody and directed the Dum Dum Central Correctional Home for taking necessary action regarding the petitioner's treatment and report by order dated 17.06.2022.
30. According to the provision of Section 330 of the Cr.PC, whenever a person if found 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 out-patient 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 27 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. 28
31. Considering the above provisions and situation of the accused petitioner, it would be appropriate to postpone or defer his case for further proceedings till his recovery from such unsound mind illness and, thereafter, the learned Magistrate, may at any time after person concerned, has required the accused to appear or brought before such Magistrate or Court.
32. In the light of aforesaid discussions and facts, the impugned order dated 26.11.2021 passed by the learned Additional Sessions Judge, 1st Court, Bongaon, North 24 Parganas in connection with S.T. No. 2 (7) 2015, New S.T. No. 503/2015 [corresponding to S.C. No. 20 (3) 2014] arising out of Bongaon Police Station Case No. 855/2013 dated 26.11.2013 under Sections 498A/406/302/120B/34 of the Indian Penal Code, 1860 and Sections 3/4 of the Dowry Prohibition Act, 1961 (corresponding to G.R. Case No. 2737/2013) is hereby set aside. Learned Court below is directed to postpone or defer his case and proceed with the case with regards to other accused persons in accordance with law.
33. In view of the Co-ordinate Bench order dated 13.06.2022, the petitioner is in Bail. Therefore, keeping him in custody in correctional home does not arise. He may be handed over to his father and legal guardian or friend or near relative or suitable 29 authority as the case may be, who undertakes to obtain regular out- patient psychiatric treatment from the nearest or better places for his proper and effective medical treatment/facilities and to prevent from doing injury to himself or to any other person. Court shall further ensure to take time to time report with regards to his treatment and improvement for further course of action in accordance with law.
34. Accordingly, CRR 283 of 2022 is, thus, allowed without order as to costs. Connected applications, if any, are also, thus, disposed of.
35. Let a copy of this judgment and order be sent to the learned Court below for information.
36. Case Diary, if any, is to be returned to the learned counsel for the State.
37. Interim order, if any, stands vacated.
38. Parties shall act on the server copies of this order uploaded on the website of this Court.
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39. Urgent photostat certified copy of this judgment, if applied for, is to be given as expeditiously to the parties on compliance of all formalities.
(Ajay Kumar Gupta, J) P. Adak (P.A.)