Madras High Court detailed the legal procedure to be followed by criminal courts in a case involving a man stated to be of unsound mind. Justice P N Prakash was prompted by a case wherein a man named Kaliyappan, who was presumably suffering from some mental illness, was taken by his father Muniyappan, to a native doctor, for the purpose of treatment. While he was being examined by the said doctor, Kaliyappan ran away hollering that he does not need any treatment. Muniyappan ran behind his son, accompanied by others, exclaiming “Catch him”. Responding to this call, one Kondaiyan, who was grazing his cattle nearby with a billhook in hand, tried to apprehend Kaliyappan. Infuriated at that, Kaliyappan is said to have snatched the billhook from Kondaiyan and attacked him indiscriminately, which eventually proved fatal.
On these allegations, a case was registered for the offense “under Section 302 IPC” against Kaliyappan. Without taking into consideration the mental illness of Kaliyappan the Magistrate commenced the proceedings “u/s 207 & 209 of Cr.P.C” and committed the case to Court of Session. During the committal proceedings as well the mental illness of Kaliyappan was not considered and no steps were taken by the Magistrate to satisfy himself as to whether he was fit for trial or not.
Due to this, a petition was filed in the Madras High Court on the apprehension that the trial court may resume trial without considering the mental state of Kaliyappan.
The court upon seeing the Medical report submitted by the Medical Board of Government Hospital noted that it is apparent that Kaliyappan had been suffering from mental illness since the time of his arrest in 2006. The situation had not improved as per an expert report in 2017, and even in 2020 "this case is hanging fire in the trial Court without any progress."
The court answered the question as to “what is the procedure to be followed by a Magistrate or Court at the stage of trial when he finds that the accused is a mentally retarded person and there exists no prima facie case against him” as:-
- If during the trial, the Magistrate/Court finds the accused to be of unsound mind, he/it shall refer the accused to a psychiatrist or clinical psychologist for care and treatment. The psychiatrist or clinical psychologist shall report to the Magistrate/Court whether the accused is suffering from unsoundness of mind or mental retardation. In other words, the expression “whether the accused is suffering from unsoundness of mind” occurring in “Section 329 (1-A) Cr.P.C.” shall be construed to subsume cases of mental retardation also.
- If the answer to the above is in the affirmative, the Magistrate/Court will then determine whether the condition of the accused renders him incapable of entering defense. If the answer is in the affirmative, then, the Magistrate/Court is required to record a finding to that effect, and then examine the record of evidence produced by the prosecution, hear the advocate for the accused and, without questioning the accused, decide if there exists a prima facie case against the accused.
- If there exists no prima facie case against the accused, the accused, irrespective of whether he is of unsound mind or is suffering from mental retardation, can be discharged and dealt with “under the proviso (a) to Section 330(3) Cr.P.C.”
- If there exists a prima facie case against the accused and if the accused suffers from unsoundness of mind the course to be adopted is set out in the proviso to “Section 329(2) Cr.P.C.” The Magistrate/Court may postpone the trial for such a period as may be necessary for the treatment of the accused.
- If there exists a prima facie case against an accused who suffer from mental retardation, the provisions of “Section 329(3) Cr.P.C.” will have to be followed. The Magistrate/Court is barred from holding a trial in these cases and the accused is required to be dealt with in the manner set out in the “proviso (b) to Section 330(3) Cr.P.C.”
The court then disposed of the plea by laying down the procedure/guidelines as follows: -
- The trial Court shall conduct an inquiry under Section 329(2) Cr.P.C, to find out if the accused in this case is capable of entering into his defense in praesenti;
- If the trial court finds that the accused in this case is mentally fit to face the trial, the trial shall be commenced and completed within 3 months from the date of such determination;
- If the trial court holds that the accused is not mentally fit to face the trial, the trial court shall conduct an inquiry to see if there is a prima facie case against the accused.
- Notably, the Court has to decide if there exists a prima facie case against the accused after examining the record of evidence produced by the prosecution and hearing the advocate for the accused but without questioning the accused.
- The Court should afford an opportunity for the family of the accused to engage a lawyer. If the family is not in a position to engage a lawyer, the trial Court shall appoint a senior lawyer of the local bar with not less than 20 years of standing and with rich experience in criminal law, to take up the case of the accused in the inquiry, for whom, remuneration shall be paid by the local Legal Services Authority;
- In the inquiry, it is open to the trial Court to examine any witness, including the doctors who had treated the accused prior to the incident; the native doctor to whom the accused was taken on the fateful day, can also be examined;
- The trial court may also enquire the doctors who treated the accused after his arrest while he was in judicial custody;
- The counsel for the accused may also be permitted to place materials before the Court in support of the case of the accused;
- At the conclusion of the inquiry, if the trial court is of the opinion that the criminal act fell within the contours of Section 84 IPC, it will then be open to the trial court to discharge the accused.
- For such discharge, the procedure set out in the proviso (a) to Section 330(3) Cr.P.C can be followed. These provisions allow the release of such an accused of unsound mind to the concerned caregivers while also directing to ensure that the accused would not harm himself or others in the future.
- In the event of the trial Court not discharging the accused, it shall proceed under the proviso (b) to Section 330(3) Cr.P.C, i.e. the transfer of the accused may be ordered to a residential facility for persons of unsound mind or mental retardation, wherein the accused may be provided care and appropriate education and training.
- In that case, the finding arrived at by the trial court against the accused shall, in no manner, be binding on the accused in the trial against him after he is certified as mentally fit to face the trial in the future. In other words, it will be open to the accused to establish once again before the trial Court that his case would fall within Section 84 IPC, because, what was done when the accused was mentally absent in the Court, cannot be put against him when he is mentally stable subsequently.
“Section 329, Cr.P.C” applies to mentally retarded persons as well. Notably, the Court has clarified that this procedure is applicable both to persons who are of unsound mind and those who are mentally retarded, although the phrase "mentally retarded" is not found in Section 329, Cr.P.C. The Judge pointed out,
“If “Section 329 (2) Cr.P.C”. is interpreted literally, there would be no provision to discharge a mentally retarded person even if no prima facie case exists against him. These anomalous consequences impel this Court to abandon the literal interpretation of Sections “329(1-A) and (2) Cr.P.C” ... the omission of mental retardation in these clauses is clearly the draftsman’s devil. In the opinion of this Court, the expression 'unsoundness of mind' occurring in clauses “(1-A) and (2) of Section 329 Cr.P.C.” must be construed to include cases of mental retardation also."
The court also said that “At this juncture, this Court is impelled to exhort the trial Judges to get themselves thoroughly acquainted with the provisions in Chapter XXV of the Code of Criminal Procedure, because, as per the W.H.O. predictions, there is going to be a huge spike in our country in the number of people with mental illness, as a sequel to which, there is bound to be a paradigm shift in the nature of crimes in the near future, to tackle which, our legal system should gear up.“