Allahabad High Court
Ajab Singh vs State Of U.P. And Another on 17 December, 2020
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL REVISION No. - 1664 of 2020 Revisionist :- Ajab Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satyendra Narayan Singh Counsel for Opposite Party :- G.A.,Ravindra Pratap Singh Hon'ble Deepak Verma,J.
Heard Sri S.N. Singh, learned counsel for the revisionist; learned A.G.A.; Sri S.K. Singh, Advocate holding brief for Sri R.P. Singh, learned counsel for opposite party no. 2 and perused the record.
Present criminal revision has been filed against the judgment and order dated 16.9.2020 passed by the learned Sessions Judge, Baghpat in S.T. No.116 of 2005 (State Vs. Sanjay) and S.T. No. 414 of 2008 (State Vs. Pratap Singh) arising out of Case Crime No.1218 of 2004 under Sections 302, 307, 364, 404, 147, 148, 149 I.P.C., P.S. Baghpat, District Baghpat.
Learned counsel for the revisionist submits that revisionist is unsound mind and his treatment is going on in All India Institute of Medical Science, New Delhi since 2017, a copy of medical prescriptions are annexed to the revision. The revisionist/applicant moved application before the court concerned as Application No.155-B, under Section 329 Cr.P.C. claiming that mental status of the revisionist is unsound, his memory has gone and as per medical report, the revisionist is suffering from dementia disease. The learned trial court examined the matter and found that by appearance the revisionist is not appear mentally disturbed and in legal way cannot be declared as legal insanely and rejected the application of the revisionist which is illegal and contrary to law. He further submits that revisionist Ajab Singh who has filed this revision through his son Pradeep Dhama, is a mentally ill person and is not in a position to face the trial and assist his counsel but the trial court has not considered this fact and after putting some question, declared revisionist normal person. The order passed by the trial court rejecting the application of the revisionist, is erroneous and bad in the eye of law. It is further submitted that unless the medical expert opinion will not be sought, the conclusion of normal or abnormal cannot be drawn on the basis of presumption, whereas in the present case the Court has not sought any medical opinion by the medical expert/neurologist and passed the order.
It is further submitted that Section 329 Cr.P.C. provides that when it appears to the court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or the court shall, in first instance, try the fact such unsound mindness and incapacity and if the Magistrate or court after considering such medical and other evidences as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to the effect and shall postpone further proceeding in the case, whereas in the present case, without considering the medical report, on the basis of presumption, the court has passed the order. It is next submitted that without consulting medical expert for examination of prescription regarding dementia disease examined by the AIIMS doctors, learned trial court assumed that revisionist is not unsound mind.
In this regard, Section 328 Cr.P.C. is quoted below:
"(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.
(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 of opinion that the person referred to in sub- section (1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case."
Leaned A.G.A. and opposite party no. 2 submits that order dated 16.9.2020 passed by the learned Sessions Judge is just and proper and no interference is required as the trial court has put some question to the revisionist and revisionist replied in proper way, therefore, finding of the trial court is not illegal and revisionist has rightly declared normal person.
Considering the argument of learned counsel for the revisionist, learned A.G.A. and learned counsel for opposite party no. 2 and from perusal of the order impugned, it is clear that learned trial court has considered the unsoundness of the applicant/revisionist by appearance and after putting some question before him but has not considered the treatment, medical prescriptions and medicines taken by the revisionist, which was annexed with the application 155-B and the same has been annexed with the revision. The provisions contained under Sections 328 Cr.P.C. and 329 Cr.P.C. clearly states that if any application comes under Section 328 Cr.P.C. for unsoundness mind of the person who is facing trial, a proper inquiry regarding his unsoundness mind be made after consulting expert doctor.
On perusal of impugned order, it is clear that while passing the order i.e. 16.9.2020, learned trial court has not consulted any expert doctor and on its own opinion after putting some question and on appearance, has determined that revisionist/applicant is normal person and is not suffering from unsoundness of mind. From the medical prescriptions of the revisionist, it is clear that revisionist is under treatment regarding dementia disease which is very fatal to brain in which a person forget everything but there are various stage of this disease and its stage can be ascertained by the expert opinion.
Since the trial court has not taken any opinion from medical expert regarding disease of which treatment is going on but formed his opinion after putting question and appearance and passed the order impugned, the matter requires interference by this Court. As such, The order dated 16.9.2020 passed by the learned Sessions Judge, Baghpat in S.T. No.116 of 2005 (State Vs. Sanjay) and S.T. No. 414 of 2008 (State Vs. Pratap Singh) arising out of Case Crime No.1218 of 2004 under Sections 302, 307, 364, 404, 147, 148, 149 I.P.C., P.S. Baghpat, District Baghpat, is, hereby set aside. The revision is allowed. If the revisionist-applicant moves fresh application along with medical prescriptions before the concerned court within 45 days from today, the concerned court is directed to decide the same within two months from the date of presentation of application after taking opinion of medical expert.
Order Date :- 17.12.2020/Meenu