SYNOPSIS

• Introduction
• Provisions as to the Accused person of Unsound Mind
• Case laws
• Conclusion
• References

INTRODUCTION

The Indian Penal Code (IPC)deals with the plea of insanity under section 84 of the IPC and the Criminal Procedure Code (CrPC) deals with persons of unsound mind under chapter 35 of the code in sections 328 to section 338.

The general perception is that any act done by a person who is of unsound mind is not a crime who at the time of commission of the crime was of unsound mind.

The main intention of including these provisions is to give a humane approach to the manner in which court proceedings are to be conducted. The provisions are for the best interest of the individual who is of unsound mind and great care has been taken that the approach which is taken by the courts is a therapeutic one.

PROVISIONS AS TO ACCUSED PERSON OF UNSOUND MIND

 

Sec 328 of the Code provides a general procedure as to what a magistrate has to do when he gets an idea that a person is of unsound mind.

• When a magistrate is holding an inquiry and during that inquiry he has a general reason to believe that the person against whom he is conducting that inquiry is of unsound mind and that person is not capable of defending himself during the course of inquiry then he shall check the same by getting the person examined by a medical practitioner.
• Once the medical practitioner ascertains that the person is of unsound mind then he shall get the person checked by a psychiatrist/psychologist who in turn is responsible for informing the magistrate as to whether the person is of unsound mind or is mentally retarded.
• During the above inquiry, the magistrate may deal with the person in accordance with sec 330m of the code.
• Once the magistrate is informed that the person is of unsound mind, then the magistrate should find out that whether the person can defend himself for the inquiry.
• If the person cannot enter his defence then the magistrate shall hear the prosecution and examine the records and also hear the advocate for the person. He cannot question the person and if he finds that no primafacie case is made out then he shall discharge the person.
• If he finds that primafacie evidence is there then he shall postpone the proceedings for a time till the person’s unsoundness can be treated as per the opinion of the psychiatrist/psychologist and he shall order the person to be dealt with as per provisions of sec 330.
• If the magistrate is informed that the person is mentally retarded then the magistrate shall inquire whether the person can enter his defence. If the person cannot enter his defence then he shall close the inquiry and deal with the person as per provisions of sec 330.

 

Procedure in case of a person of unsound mind tried before the court

The procedure is the same as above for sec 329. The only difference between section 328 and sec 329 is that sec 328 is with respect to when the magistrate is holding an inquiry and sec 329 deals with the trial of a person before a Magistrate or Court of Session.

 

Release of the person of unsound mind pending investigation or trial

As we read above that if a person is found of unsoundness or incapacity then the magistrate or court shall proceed as per provisions of sec 330.

• Sec 330 of the code provides that whenever a person is found to be of unsound mind then the court shall grant bail to such a person even if bail could not be granted in that particular category of offence.
• If the magistrate thinks that the offence is such where bail cannot be given or an appropriate undertaking has not been given then the magistrate may order the person to be kept in such a place where the person can be given psychiatric treatment.
• The magistrate shall further keeping into picture the offence that has been committed and the nature of unsoundness/retardation inquire as to whether the accused can be released.
• If the magistrate or court decides to discharge the accused as per the medical board’s opinion, then the same can be done if a security is provide that the accused shall be prevented from causing injury to other or himself.
• If the magistrate or court finds that the person cannot be discharge then he shall be transferred to a residential place where his treatment can be done and proper care can be provided to such a person.

 

Resumption of inquiry or trial

Sec 331 contemplates that when a person whose inquiry was suspended under sec 328 or sec 329 ceases to be of unsound mind in the magistrate or court’s opinion then it may resume the inquiry and the person to be brought before the court/magistrate.

 

Procedure on accused appearing before Magistrate or Court (Sec 332)

Once the accused is again presented before the magistrate or court and they are satisfied that the accused can put in his defence, then the inquiry or trial or shall proceed further.

If in case they think that the accused person still cannot make his defence then again the provisions of sec 330 will come into play.

 

When accused appears to have been of sound mind (Sec 333)

When the magistrate or court is of the opinion that the person appears of sound mind and there is proof that the act was done by the accused and that act would have been an offence had it been done with a sound mind, then the magistrate shall proceed with the case or send it to the sessions judge if required by law.

 

A judgement of acquittal on the ground of unsoundness of mind (Sec 334)

This section contemplates that when a person is acquitted due to the ground of unsoundness then the findings need to specifically record as to whether the act was committed by the accuse or not.

 

Person acquitted on such ground to be detained in safe custody (Sec 335)

This section contemplates that when a person is acquitted by the magistrate or court then it is to be ordered that the accused be kept in safe place or be delivered to a friend or relative.

No order is to be given for holding the person in an asylum unless complying with the

The court can only handover the accused if an application is made by the relative or friend to the magistrate and the magistrate being assured of the safety and care of the person.

 

Procedure where lunatic prisoner is reported capable of making his defence (Sec 337)

Sec 337 of the act contemplates that if it is found that the person is capable of putting in his defence then the court is to proceed with him under sec 332 of the Act.

 

Procedure where lunatic detained is declared fit to be released (Sec 338)

Sec 338 contemplates that when a person who is detained as per provisions of sec 330 or sec 335 of the code, then if the authorised person in that regard may certify that such a person can be released and there would be no danger or harm that will be caused in such a doing then the state government may grant the release of such a person or may direct to send him to an asylum or even in custody.

 

Procedure to Release lunatic to care of relative or friend (Sec 339)

This section contemplates that whenever any friend or a relative of a person who is kept in custody in view of provisions of sec 330 or sec 335 of the code, wants that such a person be released to him shall make an application to the state government for his release.

The state government may allow this request once the government is made sure that the proper care would be taken of such a person and that the person will be produced before the inspection officer whenever the state government directs so.

 

CASE LAWS

 

• In Amujam v. State of Kerala, 1973 K.L.T. 23, it was held that the provisions in this chapter have been incorporated for the protecting the interests of a person who is of insane mind.

 

• In the case of Jai Shanker v. State of H.P, AIR 1972, SC 2267 it was held that the provision of sec 328 is a mandatory provision. It is imperative upon the Magistrate to find out if the person is of unsound mind by taking the help of the medical practitioners. Once the magistrate is informed that the person is of unsound mind, then the magistrate should find out that whether the person can defend himself for the inquiry. It was further held that:
  • If the person cannot enter his defence then the magistrate shall hear the prosecution and examine the records and also hear the advocate for the person. He cannot question the person and if he finds that no primafacie case is made out then he shall discharge the person.
  • If he finds that primafacie evidence is there then he shall postpone the proceedings for a time till the person’s unsoundness can be treated as per the opinion of the psychiatrist/psychologist and he shall order the person to be dealt with as per provisions of sec 330.
  • If the magistrate is informed that the person is mentally retarded then the magistrate shall inquire whether the person can enter his defence. If the person cannot enter his defence then he shall close the inquiry and deal with the person as per provisions of sec 330.

 

• In the case of Gurjit Singh v. State of Punjab, 1986 Cr.LJ 1505 (P&H) it was held that there should be medical evidence that proves and shows that the plea of insanity can be successfully given. If a trial is held without recording a finding to that effect then the trial will be vitiated.

 

• In the case of V. Shivaswamy v. State, (1971) 3 SCC 220, it was held that the provisions require that an inquiry shall be conducted only if it appears that the accused was insane. However, if it does not seem so, then it is not necessary for the magistrate to conduct an enquiry. But, if there is any serious conflict or doubt then the judge should definitely conduct a proper inquiry.

 

CONCLUSION

The provisions of the Code that have been incorporated with regard to people of unsound mind are very exhaustively given. The procedure is elaborate and mostly mandatory in nature.

The first step that the magistrate or the court has to do is to ascertain that the person whom it is dealing with appears of unsound mind or not. He has to call the medical officer to aid and then also engage psychiatrists or a psychologist to aid him.

Till the time this exercise is on the proceedings which are pending before the court are suspended and kept on hold. Once it is found that the person’s health has improved and can put in his defence then the court or magistrate is bound to proceed with the trial of the accused person.

Thus it can be seen that the approach of the court is tending towards a therapeutic and caring approach for a person when it is seen that the accused is of unsound mind. However, an application needs to be preferred by the relative or the friend who wants to get the accused person released to be taken under his care.