Orissa High Court
Snehaswakshayar Samal vs State Of Orissa on 21 September, 2017
Author: B. K. Nayak
Bench: B.K.Nayak
ORISSA HIGH COURT : CUTTACK.
CRLMP NO.1474 of 2016.
An application under Article 226 and 227 of the Constitution of
India.
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Snehaswakshayar Samal ......Petitioner.
-Versus-
State of Orissa ......Opposite Party.
For Petitioner : M/s. Samvit Mohanty, Suvashish
Pattnaik, S. Mohanty, B. Moharana,
A. Barik.
For Opposite Party : Mr. Sougat Das,
(Additional Standing Counsel)
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing :12.07.2017 :Date of judgment: 21.09.2017
B. K. Nayak, J.Order dated 03.11.2016 passed by the learned 1st Additional Sessions Judge, Bhubaneswar in C.T. No.03/43 of 2015 rejecting the application of the petitioner to suspend the trial and get the petitioner examined by the Board of Doctors about his mental condition has been assailed in this writ petition. 2
2. The petitioner is facing trial in the aforesaid C.T Case for commission of murder of three persons and attempting to murder some others. During the course of trial the petitioner filed a petition under section 329, CrPC for getting the petitioner examined and until the examination report was received to suspend the trial on the ground that petitioner is of unsound mind and therefore unable to understand the proceeding and unable to make his defence. It was also stated in the petition that on his own prayer the petitioner was examined by the Director-cum-Superintendent of Mental Health Institute, Cuttack and report dated 14.09.2015 has been submitted by the Director of the Mental Health Institute stating that the petitioner-accused is of unsound mind but in spite of such report, no treatment was provided to the petitioner. The petitioner was incapable of making his defence and in spite of the same charge was framed on 07.09.2016, when the accused did not utter a word.
The petition was resisted by the prosecution stating that as per report of the Director-cum-Medical Superintendent Mental Health Institute, Cuttack the accused suffers from personality disorder but features of unsoundness of mind is not present. It was also stated that the report of the Doctor of Circle Jail, Choudwar also indicated that the accused was mentally and physically well and sound. It was also contended that the accused was pretending himself to be unsound 3 mind inside the Court and that outside the Court his behaviour was quite normal and only to protract the trial the petition under section 329, CrPC was filed.
3. Learned counsel for the petitioner contended that since the petitioner was sent for examination by the Director-cum- Superintendent of Mental Health Institute, Cuttack as per previous order of the Trial Court, it was incumbent on the Trial Court to try the fact of unsoundness of mind of the petitioner and his incapacity to make his defence by taking evidence and to record a finding on the issue and only on the finding that the petitioner was not of unsound mind and not incapable of making his defence, the Court should proceed with trial of the case. He has relied upon the decision of Punjab & Hariyana High Court reported in 1986, Cri.L.J. 1505; Gurjit Singh V. State of Punjab and the decision of the Hon'ble Supreme Court dated 08.10.2013 in Criminal Appeal Nos.1676-1677 of 2013 (Sheila Kaul through Ms. Deepa Kaul V. State through C.B.I.).
4. Learned State Counsel on the other hand submitted that Section 329, CrPC contemplates two stages. In the first stage it must appear to the Magistrate or Court that the accused is of unsound mind and consequently incapable of making his evidence. After recording of such prima-facie satisfaction, the second stage of trial of the fact of unsoundness of mind and incapacity to make the defence is to be 4 conducted. It is his submission that since the Court below was not of the view that the petitioner appeared to be of unsound mind the question of conducting trial of that fact did not arise.
5. Sections 328 and 329 of the CrPC, 1973 deal with the question as to what the Magistrate or the Court has to do when it has reason to believe or it appears to him that the person against whom the inquiry or trial is held is of unsound mind and consequently incapable of making his defence. While section 328, CrPC makes provision to inquire into the fact of unsoundness of mind of the person against whom the Magistrate is conducting an inquiry, section 329, CrPC makes provision for trial of the fact of unsoundness of mind of the accused and his consequential incapacity to make his defence at trial, if it appears to the Court that the person is of unsound mind.
6. In the instant case since the question of unsoundness of mind of the accused-petitioner arose at trial before the learned 1st Additional Sessions Judge, the provisions of section 329, CrPC are applicable.
7. Section 329,CrPC provides as under:-
"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 5 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 (1-A) 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 6 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."
8. It is apparent that sub-section-1 of section 329,CrPC contemplates two stages of procedure. The first stage is that it must appear to the Magistrate or the Sessions Court at the trial that the accused is of unsound mind and consequently incapable of making his defence. It is only after the first stage was reached that the second stage of trying the fact of unsoundness of mind of the accused and his consequential incapacity to make the defence arises. The provision does not indicate as to how the requirement of the first stage would be satisfied, that is to say, as to how it would appear to the Court that the accused is of unsound mind, so that the Court would proceed to the second stage of conducting trial of the issue of unsoundness of mind of the accused at the first instance.
The expression, "it appears to the Court", would mean that either from the answers given by the accused to some questions put by the Court, or from his conduct and demeanor or from some other fact or material produced, the Court entertains a doubt, in contrast to full satisfaction, that the accused is of unsound mind. The slightest doubt in the mind of the Court as to the soundness of the mind of the accused 7 would be enough for the Court to proceed to the second stage of trying the issue of unsoundness of mind of the accused and his consequential incapacity of making his defence. The trial of the issue would involve taking of all such evidence in a legal way so as to reach a finding on the issue.
9. In the case of I. V. Shivaswamy V. State of Mysore; AIR 1971 SC 1638, when on examining the accused it did not appear to the Sessions Judge, that the accused was insane, it was held by the Hon'ble Supreme Court, under the parimateria provision of Section 465 of the CrPC, 1898 (old Code) that it was not incumbent on the Sessions Judge to hold an inquiry into the fact of unsoundness of mind of the accused.
10. However, in the case of Dr. Jai Shankar V. State of Himanchal Pradesh, 1972 Supreme Court 2267, where an application was made on behalf of the accused raising the question of unsoundness of mind of the accused, the Hon'ble Supreme Court held that the Magistrate was bound to inquire into the fact of unsoundness of mind under section 464 of the old Code before proceeding further.
11. In the recent case of Sheila kaul through Ms. Deepa Kaul V. State through CBI in Criminal Appeal Numbers 1676-1677 of 2013, decided on 08.10.2013, where on the application filed on behalf of the defence the accused was referred to a Medical Board, which kept 8 the accused under observation for four days and submitted a report concluding that the accused was not suffering from any major psychiatric disorder, but the possibility of senile dementia could not be ruled out, the Hon'ble Supreme Court in terms of the provision of Section 329, CrPC observed; "suffice it to that the process of appreciation of material concerning the medical condition of the appellant and her alleged incapacity to make her defence was inevitable."
12. In the case in hand, it is apparent from the impugned order that on the application of the defence filed earlier that the petitioner was of unsound mind, the Court below passed order directing for examination and treatment of the petitioner at the Mental Health Institute, Cuttack and accordingly the petitioner was under treatment at the Institute for three weeks after which he was discharged. The report of the Director-cum-Medical Superintendent of the Mental Health Institute dated 14.09.2015, indicated that the accused was under
trauma due to the ghastly incident committed by him and there was fear psychosis. It was further reported that the accused was having personality disorder and he had been addicted to benzodiazepine. In the opinion of the Director of the Mental Health Institute though unsoundness of mind of the accused was absent, he had however suicidal tendency. Further on the prayer of the Superintendent of 9 Special Jail, Bhubaneswar the petitioner was shifted to Circle Jail, Choudwar, Cuttack for his psychiatric treatment and accordingly he was under treatment for sometime and returned to the Special Jail, Bhubaneswar on 10.01.2016. The report of the treating psychiatrist was that during the period of his treatment from 25.09.2015 to 13.10.2015 the petitioner did not show any fear psychosis and his behaviour was normal, and he had not any suicidal or homicidal tendency and he was mentally and physically sound. It also transpires from the impugned order that at the time of framing of charge, the petitioner at the first instance did not utter anything but on repeated query by the Court, he stated that he did not plead guilty.
13. From the narration of facts appearing from the impugned order as above, it is apparent that on the initial application filed on behalf of the petitioner, it appeared to the Court below that the petitioner was of unsound mind and therefore, it passed order to send the petitioner to the Mental Health Institute, Cuttack for his examination and treatment. Even after discharge from the Mental Health Institute, on the prayer of the Superintendent of Special Jail, Bhubaneswar the petitioner was shifted to the Circle Jail, Choudwar at Cuttack for his treatment under a Psychiatrist. In the circumstances, it must be held that the first stage as contemplated under sub-section-(1) of section 329,CrPC has been complete, for which it was incumbent on 10 the Trial Court to first of all conduct trial of the fact of unsoundness of mind and consequent incapacity of the accused-petitioner to make his defence by taking evidence before proceeding further. Therefore, the impugned order is unsustainable. Further trial of the petitioner cannot be held without first conducting trial of the fact of unsoundness of his mind.
14. It is therefore directed that the Trial Court shall first of all try the fact of unsoundness of mind of the accused-petitioner and the consequential incapacity to make his defence by taking such evidence as may be produced by the parties. The reports of the Superintendent of Mental Health Institute, Cuttack and the report of the Psychiatrist, who subsequently treated the petitioner shall also be led into evidence. Only after trial of the fact of unsoundness of mind of the petitioner, if the Trial Court comes to a finding that the petitioner is not of unsound mind, it shall proceed with further trial of the petitioner.
The CRLMP is accordingly disposed of.
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B. K. Nayak, J.
Orissa High Court, Cuttack, Dated the 21st September, 2017/pks