Once application u/s 330 CrPC claiming insanity of accused is filed along with medical certificate supporting such claim, then Trial Court is duty-bound to follow Sec.328 or 329: P&H HC

Read Order: Jaiky v. State of Haryana

Monika Rahar

Chandigarh, February 7, 2022: The Punjab and Haryana High Court has observed that once an application is moved under Section 330 of the Code of Criminal Procedure, 1973, claiming insanity of the accused, which is supported by some medical certificate regarding the unsoundness of mind of the accused, it is the bounden duty of the Court or the Magistrate to follow the procedure as laid down in Section 328 or Section 329 of the Code, as the case may be.

The Bench of Justice Suvir Sehgal added further, “The provisions as contained in Chapter XXV of the Code [deals with procedure to be followed in cases where the accused is found to be of unsound mind] are mandatory and non-adherence can vitiate the trial.”

In the instant petition under Section 482 of Cr.P.C. r/w Section 330 of Code, the petitioner being mentally handicapped, sought setting aside of the order of Additional Sessions and also sought his release from custody in an FIR lodged under Section 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. 

The FIR in question was registered on the complaint of the mother of a five-year-old victim alleging that the petitioner took her daughter on the pretext of playing with her; removed her clothes and inserted something in her private part. She also disclosed that the petitioner threatened to kill the victim in case she narrated the incident to anyone.

The petitioner’s counsel referred to a certificate issued by the Office of Civil Surgeon for persons with mental retardation to submit that the petitioner had a disability of 90% and an IQ of 20-24%. He also referred to a Concession Certificate to contend that because of his intellectual disability, the petitioner was not in a position to take care of himself and was advised not to travel without the assistance of an escort.

He also submitted that such an application under Section 330 Cr.P.C. along with an undertaking of the petitioner’s father was submitted before the trial Court and the same was rejected despite the availability of the medical opinion showing petitioner’s mental disability. 

The Counsel contended that the provisions of Section 330 of the Code were mandatory and the Court was bound to release the retarded accused on bail. He relied upon the judgment of the Allahabad High Court in Kanhaiya v. State of U.P., 2018 (8) ADJ 400, to state that the remedy available to the petitioner after the dismissal of the application under Section 330 of the Code was to invoke the supervisory jurisdiction of a superior Court. 

After examining the provisions of Section 330 Cr.P.C., the High Court observed that the essential requirement laid down therein (Section 330 Cr.P.C.) is a finding under Section 328 or 329 of the Code that the accused is: (i) a person of an unsound mind and (ii) incapable of entering defence or unable to understand the Court proceedings on account of unsoundness of mind or mental retardation. 

“Therefore, a finding has to precede before Section 330 of the Code comes into play and such a finding has to be given on the basis of an inquiry by the Magistrate or Court under Sections 328 or 329, after ascertaining unsoundness or mental retardation of the accused on the basis of evidence, including medical evidence”, opined the Justice Sehgal. 

Coming to the factual aspects of the case, the Court stated that in the impugned order, the above-stated procedure was not followed; rather the Trial Court merely relied upon a medical opinion and a status report issued by the Medical Officer of the Jail, which did not comply with the statutory requirement. 

Further, the Court observed that even the medical opinion showed that the petitioner was reported to be “suffering from severe mental retardation” and the Medical Officer stated that though a Civil Surgeon approached to constitute a medical board, it was done. So it was apparent to the Court that the Trial Court did not have the benefit of the opinion of any medical expert or specialist. 

Consequently, the revision petition was allowed and the matter was remitted to the trial Court with a direction to decide the application in the light of the provision of Section 330 Cr.P.C. following the law.