Application u/s 105 of Mental Healthcare Act, 2017 is required to be adjudicated prior to listing the case for order on sentence: Delhi High Court
Justice Jyoti Singh [16-01-2024]

Read Order: KUNAL KASHYAP v. STATE OF NCT OF DELHI (In CRL.M.C. 375/2024-DEL HC)

LE Correspondent

New Delhi, January 18, 2024: The Delhi High Court has clarified that the procedure adopted by the Sessions Court to list the matter for order on sentence without deciding the application under Section 105 of the Mental Healthcare Act, 2017 contravenes the mandate of Section 105 and cannot be accepted.

Genesis of the present petition was an FIR registered under Sections 279/337 IPC against the Petitioner for commission of offences punishable under Sections 279/337/304A IPC.  The Petitioner was convicted and an order on sentence was passed by the Metropolitan Magistrate. Petitioner filed an appeal but the same was dismissed by the Sessions Court. On the same day, the two applications filed by the Petitioner under Section 4 of Probation of Offenders Act, 1958 and under Section 105 of Mental Healthcare Act, 2017 were taken on record and the case was adjourned

This impugned order was assailed before the High Court on two-fold grounds by the Petitioner. It was submitted that the Petitioner had been suffering from schizophrenia, depression, psychosis, paranoia and hallucinations, for which he had been under treatment since 2015 till date. The illnesses had rendered him incapable of even carrying out his daily activities without the assistance of his sister, who is his guardian and looking after him since 2015. As per the mandate of Section 105 of the said Act, case of the Petitioner ought to have been referred by the Court for further scrutiny to the concerned Board for its opinion, which procedure was not followed.

Referring to Section 4 of the 1958 Act, it was urged that this provision vests the Court with power to release persons on probation for offences not punishable with death or imprisonment for life. In the present case, since the Petitioner had been convicted for offences punishable under Sections 279/337/304A IPC, none of which are punishable with death or life imprisonment and the maximum sentence that could be imposed was imprisonment for two years.

Referring to Ravinder Kumar Dhariwal and Another v. Union of India and Others, the Bench opined that the purpose of enacting the 2017 Act was to ensure healthcare, treatment and rehabilitation of persons with mental illness as well as to protect and promote their rights and as observed by the Supreme Court in the aforementioned judgment, this Act provides for a rights-based framework with a transformative potential.

The Bench further held that the Section 105 creates a statutory right in favour of a person, who claims to be suffering from mental illness, as defined under Section 2(1)(s) of the 2017 Act, to seek reference of his case to the Board for its opinion during any judicial process and casts a consequential obligation on the Competent Court to make a reference and seek an opinion from the Board when such a claim is made before it.

“This is a clear mandate of Section 105 of the 2017 Act and is open to no exception or discretion by the Court. The inexorable conclusion therefore is that if a claim of mental illness is made before the Court, whether orally or by an application, with some supporting material that the person is suffering from mental illness, an onerous responsibility is cast on the Competent Court to follow the procedure laid down in Section 105 of the 2017 Act”, it said.

“From the order-sheets, it is therefore clear that while the learned Court proceeded to hear arguments on the application under Section 105 of the 2017 Act but did not decide the same, which is contrary to the express provision and spirit of Section 105 of the 2017 Act. The procedure adopted by the learned Sessions Court to list the matter for order on sentence without deciding the application under Section 105 of the 2017 Act contravenes the mandate of Section 105 and cannot be accepted”, the Bench noted.

The High Court also opined that the argument of the State that the application will be decided on 18.01.2024 contemporaneously with the order on sentence was wholly flawed. Section 105 of the 2017 Act envisages reference of the claim of mental illness to a Board, which would then assess the alleged mental illness, after examining the case of the person itself or by a Committee of Experts and submit its opinion to the Court. This opinion would undoubtedly be a relevant factor for deciding the quantum of sentence including for deciding an application under Section 4 of the 1958 Act, in a given case. “Therefore, as rightly argued on behalf of the Petitioner, decision on the application under Section 105 of the 2017 Act will impact the order on sentence and the application was thus required to be adjudicated prior to listing the case for order on sentence”, the Bench further noted.

As far as application under Section 4 of the 1958 Act was concerned, while it was the argument of the State that the said provision is inapplicable to a case where the offence is under Section 304A IPC, the Petitioner urged that this couldnot be treated as a thumb rule in every case. However, since the Court was not called upon to decide the application on merits and the only relief pressed by the counsel for the Petitioner was to direct the Sessions Court to decide the application before pronouncing the order on sentence, the Bench refused to enter into the merits of the application. As per the Bench, it is the domain and jurisdiction of the Sessions Court to decide the application, both on maintainability and merits.  

“This Court nonetheless does find merit in the contention of the Petitioner that the application cannot be left undecided and will require to be adjudicated, post the decision on the application under Section 105 of the 2017 Act”, the Bench held while directing the Sessions Court to decide the application filed by the Petitioner under Section 105 of the 2017 Act and pass an order thereon. It was also directed by the Bench that the Court shall proceed to decide the application under Section 4 read with Section 11 of the 1958 Act and pronounce the order on sentence. The impugned order was thus set aside to the extent it directed listing the matter on 18.01.2024 for order on sentence.