Gujarat High Court
Dharmesh @ Kesubhai Ranavaya Thro ... vs State Of Gujarat on 12 August, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 955 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DHARMESH @ KESUBHAI RANAVAYA THRO JAYSHREEBEN
DHARMESH @ KESUBHAI RANAVAYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARSHIT S TOLIA, SENIOR COUNSEL with MR JEET Y
RAJYAGURU(8039) for the Applicant(s) No. 1
MR HRIDAY BUCH, SENIOR COUNSEL with MR CHINTAN S POPAT(5004)
for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/08/2024
ORAL JUDGMENT
1. The present application is moved by the original accused who is presently in judicial custody in Page 1 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined Junagadh Jail, through his wife. The applicant is noted to be aged about 40 years and the wife is aged 33 years. The challenge under Section 379 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.') is given against the order dated 23.06.2023 passed by the learned 3rd Additional Sessions Judge, Una in Sessions Case No.27 of 2021, which was moved under Sections 328 and 329 of the Cr.P.C..
2. Sections 328 and 329 of Cr.P.C. are incorporated under Chapter XXV of Cr.P.C. Section 328 is the procedure in case of accused being lunatic. Section 329 is the Procedure in case of person of unsound mind tried before Court.
3. Learned Senior Counsel Mr. Harshit S. Tolia appearing with learned Advocate Mr. Chintan S. Popat for the applicant-accused submitted that the impugned order was passed under Section 329 of Cr.P.C. but the observations of the learned Judge is contrary to the provisions of law. It is further submitted that the applicant is unable to make a defence because of his unsound mind and he had Page 2 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined moved the concerned Court to consider his case in accordance to the provisions of Section 329 of Cr.P.C. It is also submitted that the history of the whole family suggests that all were suffering from serious psychiatric and mental illness. The father as well as the grandfather were also mentally ill; the tendency of the family was of committing suicide and are suffering from diseases like bipolar mood disorder, unsoundness of mind, mental retardation, stubborn angriness etc. It is submitted that the father of the present applicant namely Kesubhai had committed suicide in the year 1991, at the age of 40 years and the sister of the applicant namely Santaben too had committed suicide in the year 2004, aged 29 years. It is also submitted that mental illness is running in the family and the present applicant is also suffering from bipolar mood disorder and migraine. It is further submitted that because of bipolar disorder, the applicant looses control over the senses and becomes lunatic leading him to commit such actions beyond his control and the applicant would not have any knowledge about the consequences of his act.
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4. Learned Senior Counsel Mr. Harshit S. Tolia further submitted that the applicant is undergoing treatment from Dr. Vishwamohan Thakur, M.D., Consulting Psychiatrist, Ahmedabad, G-11938 (MD). It is further submitted that the applicant had stabbed the man on 26.09.2017 due to unsound mind as referred in the medical history of the treatment papers. Further, the applicant is having serious anger management issues from childhood and is emotionally sensitive. It is also submitted that the applicant is having a lunatic state of mind and as per the treatment papers, the applicant had attempted suicide by ingesting poison at his farm.
5. Referring to the observations of the learned Judge in above order dated 23.06.2023 below Exhibit 18, learned Senior Counsel Mr. Harshit S. Tolia submitted that the learned Judge was required to independently take his own decision to decide whether the accused is suffering from an unsound mind. It is also submitted that the Doctor as a Psychiatrist had no authority as per law to declare that the applicant- accused is stable and can be taken into proceeding with on going treatment with the aid of psychiatrist.
Page 4 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined It is also submitted that the declaration of the psychiatrist that the applicant is suffering from mental disorder, that itself is a sufficient ground to declare the applicant as of an unsound mind.
6. Countering the above arguments, learned Senior Counsel Mr. Hriday Buch appearing with learned Advocate Mr. Chintan S. Popat for the respondent- complainant submitted that the plea of unsoundness of mind has been wrongly taken by the applicant- accused. The applicant is a married man, having a son. The applicant accused himself is taking part in the proceedings of the Court where he himself had moved an application. It is further submitted that the applicant is well aware of the proceedings of the Court, while the application-Exhibit 18 was also given by the applicant himself before the learned trial Court. It is also submitted that an attempt has been made by the applicant to prove himself of an unsound mind so as to get discharged in the matter. It is submitted that the facts of the case suggest that the dispute arose that on 30.04.2021 when the husband and father-in-law of the complainant were sitting outside their own house. It is alleged that the Page 5 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined road was blocked which was connected to the applicant's land and that had led to the incident where the applicant accused gave a blow to the husband of the complainant as well as assaulted the father-in-law of the complainant with a 'gupti', which itself shows the weapon was used by the applicant in a conscious state of mind at the place of incident.
7. Section 329 of Cr.P.C. has laid down the procedure in case of person of unsound mind tried before Court. 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 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. Sub-section (1A) of Section 329 of Cr.P.C. further makes a provision that if during trial, the Magistrate or Court of Sessions, finds Page 6 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined 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.
8. Here in this case, an application - Exhibit 18 was moved by the accused himself while no such observations appear to weigh in the mind of Court of Sessions with regard to the unsoundness of mind of the accused. There is nothing on record to suggest or any observations to the effect that the accused is incapable of making his defence. The accused as an applicant himself had moved the Court to invoke the provision of Section 329 of Cr.P.C. stating the facts about his family illness. The learned Judge has noted that the accused had urged that he for long period is suffering from mental pain and at any time would be aggressive and violent. Earlier too, the applicant had received the treatment from the Psychiatrist and it was also urged before this Court that such mental illness is hereditary in nature. The learned Sessions Judge had observed that during Page 7 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined the applicant's jail custody, the Junagadh Jail Authority has referred the applicant to Mental Hospital. About the mental health, the Superintendent of Hospital for Mental Health, Jamnagar had investigated and had also studied the earlier Reports. The applicant was investigated on 23.06.2023 and it was opined that the applicant is suffering from mood disorder, bipolar variety with personality issues on Axis-II for which the treatment is going on and there was improvement in the condition of the applicant. The applicant was advised regular follow-up for a longer period of time and that the applicant would be in need of treatment. Such opinion was given by the Doctor, and earlier too the applicant's treatment was going on with Dr. Vishwamohan Thakur.
9. It was urged before the Sessions Court by the applicant-accused that for the treatment, he would be required to stay in a peaceful atmosphere with the family members so that his treatment would be effective. It was also before the Court that the applicant is not in a position to defend in the judicial proceedings. It was also urged before the Page 8 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined Court that the earlier bail application as Criminal Miscellaneous Application No.88 of 2022 was moved before the Court for a temporary period for having his treatment before the Dr. Vishwamohan Thakur but the jail authority passed an order for treatment and send a report within 15 days. It was urged before the Court that the jail authority has not followed the order of the Court and that they are not conscious about the mental condition of the applicant and therefore, a prayer was made against the order of the jail authority. Objections were submitted by the complainant by filing an application at Exhibit 26.
10. The learned Judge has noted that on filing of the application, the Court had asked for an opinion from Mental Hospital, Jamnagar and by an order the Junagadh Jail Authority referred the matter to the Jamnagar Mental Hospital. The opinion of the Doctor was taken into consideration. The applicant- accused was examined on 13.06.2023 and it was noted by Superintendent, Hospital for Mental Health, Jamnagar that he was suffering from mood disorder, bipolar variety with personality issues on Axis-II and that his treatment was in process. The opinion Page 9 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined given was that there was improvement in the applicant's condition and opinion was given by the authority that the proceedings can continue against the applicant, provided he should be given regular treatment and primary follow-up from the psychiatrist. Considering the present situation as well as the condition of the last two-three months of the applicant, during continuation of the proceedings, it was opined that the opinion of the psychiatrist could be procured. The learned Judge thus noted that there was improvement in the condition of the accused. It was further opined that treatment of mental illness was to be taken regularly from the Doctor and if there is a continuous treatment with the follow up then as per the opinion, the Court proceedings would continue against the accused.
11. The learned Judge has also observed that the condition of the accused has improved during the preceding two - three months. The learned Judge has also noted about the history, where the Doctor has noted that the applicant is aware of the proceedings against him and there is no need for any investigation by any Doctor of Mental Hospital. The Page 10 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined Sessions Judge has also taken notice of the opinion that the applicant is stable and can be taken into proceedings with ongoing treatment with provision of psychiatrist follow-up at primary psychiatrist as and when required. Thus, after having noticed the opinion of the Doctor that the accused is in stable condition, and he was in a position to understand the questions put to him, then with the continuous medical treatment, the proceedings could be continued.
12. With regard to the contention of learned Senior Counsel Mr. Harshit S. Tolia that under Section 239 of Cr.P.C., the learned Judge has to independently take the decision with regard to the unsoundness of mind of the accused and not to rely on the opinion of the Doctor, the said contention is not in accordance with the provisions of Section 329 of Cr.P.C. Sub-section (1A) of Section 329 clarifies that if the Court finds the accused to be of unsound mind during the course of trial, the Court 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 Page 11 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined Magistrate or Court whether the accused is suffering from unsoundness of mind. If the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an Appeal before the Medical Board which shall consist of head of psychiatry unit in the near Government Hospital and a faculty member in psychiatry in the nearest medical college. Here in the present matter as submitted, the applicant-accused has not appealed before the Medical Board, the applicant has not challenged the opinion expressed by the Superintendent, Hospital for Mental Health, Jamnagar.
13. Sub-section (2) of Section 329 of Cr.P.C.
provides that 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 Page 12 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined 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. Here in this case, the Court after considering the opinion of the Psychiatric Department, had examined the condition of the accused and had noted that the accused had himself taken part in the proceedings. The Court has very categorically observed that the accused has taken his defence. The learned Judge has further noted that the accused himself had moved an application for bail where he had put his signature and the application - Exhibit 18 was moved by the accused himself. The applicant himself had made a representation before the Court and has stated about his condition being in progress and also stated the days of his injections. On submission presented by the applicant himself before the Court, the Court had come to the conclusion that the accused is in position to understand the questions of the Psychiatrist of Jamnagar Mental Hospital. The learned Sessions Judge has noted that it could Page 13 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024 NEUTRAL CITATION R/CR.RA/955/2023 JUDGMENT DATED: 12/08/2024 undefined not be proved prima-facie that the accused is incapable to understand the proceedings and as per the opinion of the Doctor, the accused is in a position to understand the judicial proceedings. The observations made by the learned Judge is in consonance with the provisions of Section 329 of Cr.P.C. The learned Judge has independently observed and determined regarding the mental state of the accused and about the applicant-accused's capability to enter defence. While taking support of the opinion of the Doctor it is found that the accused is capable of understanding the judicial process.
14. In view of the aforesaid discussion, this Court does not find any merits in the grounds raised in the present application. The order dated 23.06.2023 passed by the learned 3rd Additional Sessions Judge, Una in Sessions Case No.27 of 2021 is upheld and confirmed as the same is in accordance with the provisions of law. No illegality or invalidity has been brought to the notice of this Court, hence, the present application stands rejected.
Sd/-
(GITA GOPI, J) CAROLINE Page 14 of 14 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Aug 28 2024 Downloaded on : Fri Aug 30 21:45:35 IST 2024