Karnataka High Court
Shivaraj vs The State Of Karnataka on 23 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2025:KHC-K:456
CRL.P No. 201601 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 201601 OF 2024
(482(Cr.PC)/528(BNSS))
BETWEEN:
SHIVARAJ S/O BHEEMANNA DAPPEDAR,
AGE: 25 YEARS, OCC: COOLIE,
R/O. VENKATAYANPET MUDGAL TQ. MUDGAL,
DIST. RAICHUR-584125.
...PETITIONER
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA THROUGH,
MUDGAL POLICE STATION, DIST RAICHUR-584125.
R/BY ADDL. SPP HIGH COURT OF KARNATAKA,
Digitally signed by
SHILPA R KALABURAGI BENCH-585107.
TENIHALLI
Location: HIGH
COURT OF 2. RAMESH S/O DURGAPPA,
KARNATAKA AGE: 32 YEARS,
OCC: STENO AT DISTRICT AND SESSIONS JUDGE,
KALABURAGI
R/O. MEDIKINAL, NOW AT VENKATARAYANAPETE,
MUDGAL, TQ. LINGASUGURU,
DIST. RAICHUR-584125.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1
SRI MAHANTESH PATIL, ADVOCATE FOR R2)
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NC: 2025:KHC-K:456
CRL.P No. 201601 of 2024
THIS CRL.P IS FILED U/S.482 OF CR.P.C.(OLD), U/S 528
OF BNSS (NEW) PRAYING TO QUASH THE IMPUGNED ORDER
DATED 06-12-2024 PASSED BY THE COURT III ADDL.
DISTRICT AND SESSIONS JUDGE, RAICHUR SITTING AT
LINGASUGUR IN SC NO.51/2021, AND CONSEQUENTLY DIRECT
THE TRIAL COURT TO CONDUCT THE DUE ENQUIRY AFTER
EXAMINING THE DOCTOR CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This petition is filed under Section 528 of BNSS, 2023, assailing the order dated 06.12.2024 passed by the Court of III Addl. District and Sessions Judge, Raichur, sitting at Lingasugur in SC No.51/2021 and consequently, to direct the said Court to conduct the due enquiry after examining the Doctor concerned who has issued medical report with regard to mental status of petitioner.
2. Heard the learned counsel for the parties.
3. Petitioner herein is being tried before the Trial Court in SC No.51/2021 for the offences punishable under Sections 504, 307, 323 and 302 of IPC. During the course of trial in the said -3- NC: 2025:KHC-K:456 CRL.P No. 201601 of 2024 case, learned counsel for the accused/petitioner had filed an application before the Trial Court seeking a direction to the Jail Authority to provide psychiatric treatment to the petitioner and the Trial Court vide the order dated 16.03.2024 had permitted the Jail Authority to send the petitioner to DIMHANS for evaluation and treatment. Thereafter, by order dated 30.08.2024, the Trial Court had referred petitioner/accused to a psychiatrist of DIMHANS requesting the psychiatrist to submit a report as to whether accused is suffering from unsoundness of mind. Consequent to the said order, a medical report was filed after medically examining the petitioner/accused, stating that petitioner/accused was in a position to understand the Court proceedings. The Trial Court by order dated 06.12.2024 after receiving the medical report of the petitioner/accused has observed that there are no grounds to stop the proceedings and has ordered to proceed with the trial. Aggrieved by the said order, petitioner is before this Court.
4. Learned counsel for the petitioner having referred to Section 368 of BNSS, 2023, submits that after receipt of the medical report, the Trial Court without examining the Doctor who has issued the Report has been proceeding with the trial -4- NC: 2025:KHC-K:456 CRL.P No. 201601 of 2024 which is not permissible in law. He submits that in view of proviso to sub-section (3) of Section 368 of BNSS, 2023, the Trial Court ought to have postponed the trial and only after holding an enquiry with regard to the medical report submitted, the Trial Court should have proceeded further.
5. Per contra, learned HCGP for respondent No.1 and learned counsel for respondent No.2 have opposed the prayer made in the petition.
6. Section 368 of BNSS, 2023, reads as follows:-
"368. 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 of mind 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.
(2) 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 -5- NC: 2025:KHC-K:456 CRL.P No. 201601 of 2024 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.
(3) If the Magistrate or Court is informed that the person referred to in sub-section (2) is a person of unsound mind, the Magistrate or Court 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 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 369:-6-
NC: 2025:KHC-K:456 CRL.P No. 201601 of 2024 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.
(4) 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 intellectual disability, he or it shall not hold the trial and order the accused to be dealt with in accordance with Section 369."
7. In the present case, at the stage of trial, the learned trial Judge has referred the petitioner/accused to a psychiatrist for the purpose of his medical examination and submitting the report. Pursuant to the said order, petitioner was medically examined by a psychiatrist and medical report was also filed stating that the petitioner was in a position to understand the Court proceedings. After the receipt of the said report, the Trial Court has proceeded further with the trial. A reading of sub- section (2) of Section 368 of BNSS, 2023 and the proviso to that Section would make it very clear that in the event, accused is aggrieved by the medical report given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he -7- NC: 2025:KHC-K:456 CRL.P No. 201601 of 2024 may prefer an appeal before the Medical Board. Therefore, it is for the petitioner/accused to prefer such an appeal as provided under the proviso to sub-section (2) of Section 368 of BNSS, 2023, before the competent authority and thereafter, make necessary application before the Trial Court. Undisputedly, till date no such appeal has been filed by the petitioner/accused and therefore, I am of the opinion that the Trial Court was fully justified in proceeding with the trial of the case. Under the circumstances, I do not find any good ground to interfere with the order impugned. Accordingly, the following order:-
8. The petition is dismissed. However, this order will not come in the way of the petitioner/accused preferring an appeal as provided under proviso to sub-section (2) of Section 368 of BNSS, 2023, if he is so advised.
Sd/-
(S.VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 41 CT:PK