Provisions As To Accused Persons Of Unsound Mind

INTRODUCTION

Chapter 25 of the Code of Criminal Procedure deals with the accused persons of unsound mind. The chapter starts with Section 328 and ends at Section 339. An accused person in a layman language is any person who is presumed to be charged with some offence, or against whom any claim of committing an offence is made. An unsound person is a person who is lunatic or otherwise insane. When we talk about an accused being of an unsound mind we mean a person who has committed an offence in a state of mind whereby he couldn’t understand the nature of the act he is committing. What remedies law has provided for such a person? Chapter 20 has provided for certain safeguards for an accused who is not in a normal state of mind which are detailed herein below:

PROCEDURE IN CASE OF ACCUSED BEING LUNATIC – SECTION 328

The section says that when a Magistrate is conducting an inquiry and he has reasons to believe that the person against whom the inquiry is initiated is of unsound mind and consequently incapable of making his defense, the magistrate shall inquire into the fact of such unsoundness of mind and shall cause such person to be examined by civil surgeon of the district or any such medical officer as the state government may direct, he shall then examine such surgeon or medical officer whatever the case may be as witness and shall reduce the examination in writing.

Clause [(1A) was inserted by the Act 5 of 2009, Section 25(a) : According to this clause if a civil surgeon or a medical officer finds the accused to be of unsound mind he shall refer such person to a psychiatrist or clinical psychologist and he shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation. This clause comes with a proviso which lays down:

Provided that if the accused is aggrieved by the information which is 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 the psychiatry unit in the nearest government hospital
• a faculty member in psychiatry in the nearest Medical college.

Clause 2 of the said Section provides that pending such inquiry and examination the Magistrate may deal with the accused person in accordance with Section 330.

Clause 3 added by Act 5 of 2009, Section 25(b) : says that if the Magistrate is informed that the person referred to in sub section (1A) is of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of defending himself, if the Magistrate believes that the accused is incapable of defending himself, he shall record a finding to that effect and shall examine the record of evidence produced by the prosecution, the Magistrate has to question the advocate and not the accused, if he finds out that no prima facie case is made out against the accused, he shall discharge the accused instead of postponing the enquiry and shall deal with him in a manner provided under Section 330.

Where the Magistrate finds out that a prima facie case is made out against the accused person, he shall postpone the proceedings till such a time period as in the opinion of the psychiatrist or psychologist is required for the treatment of the accused.

Subsection 4 of the section provides that if the Magistrate is informed that the accused person is suffering from mental retardation, he shall further determine whether the mental retardation renders the accused person incapable of defending himself, if the accused is found incapable, the Magistrate shall order closure of inquiry and deal with the accused as provided under Section 330.

PROCEDURE IN CASE OF PERSON OF UNSOUND MIND TRIED BEFORE COURT –SECTION 329

Subsection 1: says if during the trial before a Magistrate or Court of Session, it appears to the court or Magistrate that the person in question 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 Court or Magistrate after examining the medical and other evidence as may be produced, is satisfied with the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

Clause (1A) Inserted by Act 5 of 2009, Section 26(a) the clause says that if during the trails the Magistrate or the court finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and any of such person whether the psychologist or psychiatrist as the case may be shall report to the Magistrate whether the accused person is suffering from unsoundness of mind :

Provided if the accused is aggrieved by such report he shall prefer an appeal before the Medical board which shall consist of

(a) head of psychiatry unit in the nearest hospital

(b) a faculty member in psychiatry in the nearest medical college

sub-section (2) of the said section says that if the Magistrate or Court is informed that the person referred 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 defense and if the accused is found so incapable, the Magistrate shall examine the record of evidence produced by the prosecution and shall record a finding to that effect if the Court finds no prima facie case is made out against the accused person, he or it shall instead of postponing the trial discharge the accused and shall deal with him according to the provisions of Section 330. But if the Magistrate finds out that the prima facie case is made out he shall postpone the trail for a period as may be prescribed by the psychiatrist or clinical psychologist for the treatment of the accused.

Sub section (3) lays down that if the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defense because of mental retardation, he or it shall not hold any trail and may deal with the accused according to Section 330.

State of Maharastra v. Sind A.I.R 1975 SC 1665

The Supreme Court has held that the word “trail” in Section 329 includes reference under sub section (1) of Section 336. In this case death penalty was given to the accused person of unsound mind the question was whether Section 329 shall apply to the accused when the sentence has been passed by the Sessions Judge but sent for confirmation to the High Court. It was held that the trial of the accused, a person of unsound mind sentenced to death does not conclude with the termination of the proceedings in the Court of Sessions because the trail cannot be deemed to have concluded in till an executable sentence is passed by the competent court.

RELEASE OF LUNATIC PENDING INVESTIGATION OR TRAIL – SECTION 330

Sub section (1) of Section 330 provides that whenever a Magistrate or a Court finds the accused to be of unsound mind under Section 328 or Section 329, he or it shall order the release of such person whether the offence is bailable or not:

Provided that the accused is suffering from such unsoundness or mental retardation which does not require in-patient treatment, and a friend or relative takes responsibility that such person will not cause injury to himself or any other person.

Sub section (2) says that if the offence is such that a bail cannot be granted or proper undertaking is not given then the magistrate shall order such person to be kept at such a place where he can get regular psychiatric treatment and report the action taken to the State Government :

Provided no order of detention of such person in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have under the Mental Health Act, 1987.

(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering into defense because of unsoundness of mind or mental retardation the Magistrate or the Court as the case may be, shall keep in mind the nature of the offence committed and the extent of unsoundness or mental retardation, and shall further determine whether the accused can be released or not:

Provided that :

• If on the opinion of the medical specialist, the Magistrate or Court as the case may be, decide that the accused should be discharged as mentioned under Section 328 and Section 329, such release may be ordered, if sufficient security is given that the accused will not cause injury to himself or any other person
• If the Court or Magistrate as the case may be, is of the opinion that discharge of the accused cannot be ordered, the Magistrate or Court shall order the transfer of the accused to a residential facility for persons of unsound mind or mental retardation where the accused may be provided with proper care and appropriate training and education.

Joy Hari Kor, (1877) 2 Cal 356

It was held that the authority of a Magistrate to act under sub section (1) ceases when the lunatic is handed over to the care of the State Government. If the relative of such lunatic desires to have the custody of the lunatic he should apply, not to the Magistrate, but to the Government.

RESUMPTION OF INQUIRY OF TRAIL – SECTION 331

Sub section (1) provides that whenever an inquiry or a trail is postponed because of the reason of the accused being unsound or mentally retarded, the Magistrate or the Court as the case may be, 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.

Sub section (2) lays down that when the accused has been released under Section 330, and the sureties for his appearance produce him to the officer who 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.

PROCEDURE ON ACCUSED APPEARING BEFORE MAGISTRATE OR COURT – SECTION 332

Sub section (1) provides that if the Magistrate or the Court finds the accused person of being capable of defending himself, the inquiry or the trial shall proceed.

Sub section (2) lays down if the Magistrate or the Court considers the accused of being capable of making defence, the Magistrate or the 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 of making his defence, he or it shall deal with the accused according to the provisions of Section 330.

WHEN ACCUSED APPEARS TO HAVE BEEN OF SOUND MIND – SECTION 333

When the accused appears before the Magistrate or Court to be of sound mind at the time of inquiry or trial, and the Magistrate is satisfied from the evidence produced before him that there is reason to believe that the accused committed an act, which, if he would have 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.

JUDGEMENT OF ACQUITTAL ON GROUND OF UNSOUNDNESS OF MIND – SECTION 334

Whenever any person is acquitted upon the ground that, at the time of commission of the offence he was incapable of knowing the nature of the act committed, by reason of the unsoundness of mind, and that he did not have the sense of recognizing the act as wrong or contrary to law, the finding shall state specifically whether he committed the act or not.

State of Karnataka v. Jatli, 1992 CrLj 3835

The accused assaulted his wife and children and set fire to a house, but the plea of insanity was neither taken by the accused nor the prosecution referred to it, the trial Judge may resolve the issue all by himself but he must have a set of facts produced in evidence by a competent Medical person. In the absence of such evidence, the judge cannot acquit the accused on grounds of insanity on his own.

PERSON ACQUITTED ON SUCH GROUND TO BE DETAINED IN SAFE CUSTODY – SECTION 335

Sub section (1) of the said section provides for whenever it is found that the alleged person committed the act allegedly, the Magistrate or the Court before whom the trail has been held shall, if such act would, but for the incapacity found have constituted an offence:

(a) order such person to be detained in safe custody in such a place as the Magistrate may deem fit

(b) order such person to be delivered to the relative or friend

Sub section (2) lays down that no order of detention of the accused in a lunatic asylum shall be made under clause (a) of sub section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912

Sub section (3) of the section provides that no such order under clause (b) of subsection (1) shall be made otherwise than on application is given by the friend or relative, only after providing the security to the satisfaction of the Magistrate or Court as the case may be, that the person delivered shall:

(a) be properly taken care of and prevented from doing injury to himself or any other person

(b) be produced for the inspection of such officer, and at such time and places, as the State Government may direct

Sub section (4) provides that the Magistrate or Court shall report to the State Government the action taken under sub section(1).

Legal Remembrancer v. Srish Chandra Roy, (1928)56Cal 208

The court held that detained in the safe custody does not mean detained in the custody of friends or relatives.

POWER OF THE STATE GOVERNMENT TO EMPOWER OFFICER IN CHARGE TO DISCHARGE – SECTION 336

According to this Section the State Government shall empower the officer in charge of the jail in which a person is lodged under Section 330 or Section 335 to discharge all or any of the functions of the Inspector General of Prisons under Section 337 or Section 338.

PROCEDURE WHERE LUNATIC PRISONER IS REPORTED CAPABLE OF MAKING HIS DEFENCE – SECTION 337

Where the person is detained under the provisions of sub section (2) of Section 330, in case of the person detained in jail, the Inspector General of Prisons,or, in case of a person detained in a lunatic asylum, the visitors of such asylum or any two of them shall certify, that such a person is capable of making his defence and that he shall be taken before the Magistrate or Court, at such time as the Magistrate or Court appoints, and deal with such person according to the provisions of Section 332, the certificate of the Inspector General of Prisons shall be receivable as evidence.

PROCEDURE WHERE LUNATIC DETAINED IS DECLARED FIT TO BE RELEASED – SECTION 338

Sub section (1) provides that if a person is detained under sub section (2) of section 330 or Section 335 and such Inspector General or visitor shall certify that, in his or their judgment, he may be released with an authorization that he will neither cause damage to himself or any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such asylum, for sending him to the asylum he shall constitute a commission, consisting of a judicial officer and two medical officers

Sub section (2) of the said section lays down such commission shall make a formal inquiry into the state of mind of that person, take such evidence as may be necessary, and shall report to State Government, which may order his release or detention as it deems fit.

DELIVERY OF LUNATIC TO CARE OF RELATIVE OR FRIEND – SECTION 339

Sub section (1) provides that whenever any relative or friend of any person detained under the provisions of Section 330 or Section 335 wants to take custody of the accused person, he shall write an application and provide the security to the satisfaction of the State Government, that the person delivered shall

(a) be properly taken care of and prevented from doing injury to himself or any other person

(b) be produced for the inspection of such officer, and at such places and time as the State Government may direct

(c) the person detained under sub section (2) of Section 330 be produced when required before such Magistrate or Court, order such person to be delivered to such relative or friend

Sub section (2) if the person so delivered is accused of any offence, the trail of which has been postponed by reason of unsoundness of mind or mental retardation, which render him incapable of making his defence and the inspecting officer referred to in clause (b) of sub section (1) certifies that such a person is capable of making his defence, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the Magistrate or Court and upon such production the Magistrate or Court shall deal with him according to the provision of Section 332 and the certificate of the inspecting officer shall be deemed as evidence.

CONCLUSION

The whole Chapter deals with the person of unsound mind, it provides certain safeguards to the person in question, but at the same time the Court or the Magistrate dealing with such cases need to go in detail to check and know the reason of insanity, the Court or Magistrate shall order to examine him by Civil surgeon or any Medical Officer to find out the state of mind of the accused person. The decision ultimately lies with the State Government the future of the person in question lies in the hands of the State Government. The person is to be kept in safe custody and provisions for that are also mentioned. The Sections also provide that the person should only be delivered to a relative or friend when it is wholly ensured that such person will not be a threat to himself or any other person. The chapter also contains Sections which provide that upon the ability of the person to be capable of defending himself, the proceedings which were postponed may be resumed.

By- Symeen Makhdoomi

School of law, University of Kashmir

Case Laws

• State of Maharastra v. Sind A.I.R 1975 SC 1665
• Joy Hari Kor, (1877) 2Cal 356
• State of Karnataka v. Jatli, 1992 CrLj 3835
• Legal Remembrancer v. Srish Chandra Roy, (1928) 56 Cal 208

SOURCES:

• The Code Of Criminal Procedure By Ratanlal And Dhirajlal
• SCC Online

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