SUPREME COURT OF INDIA
WRIT PETITION (CRL.) NO(s). 296 OF 2005
RE: ILLEGAL DETENTION OF MACHAL LALUNG
(With office report )
WITH
WRIT PETITION (CRL.) NO. 18 of 2006
RE: NEWS ITEM "38 YRS. IN JAIL WITHOUT TRIAL" PUBLISHED IN
HINDUSTAN TIMES DT. 6.2.2006
Versus
UNION OF INDIA ...Respondent
(With appln. for directions and office report)
Date: 24/10/2007 These Petitions were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE R.V. RAVEENDRAN
HON'BLE MR. JUSTICE DALVEER BHANDARI
ORDER
1
A news item was published on 14th October, 2005 in the
Indian Express, New Delhi stating that one Machal Lalung, a
resident of Assam continued to languish as a undertrial prisoner in a
psychiatric hospital for a period of 38 years even after he was
declared fit by the Hospital in 1967. This news item was brought to
the notice of this Court and a series of orders were passed. The said
Machal Lalung was directed to be released from the psychiatric
hospital. The High Courts' Registries were required to collect and
furnish the particulars of undertrial prisoners lodged in mental
asylums. The reports received from the High Courts show that there
are several other cases where mentally ill persons who have allegedly
committed various offences are kept as undertrial prisoners in
various psychiatric hospitals/nursing homes in various States. It
appears that there are no periodic reports from these hospitals as to
whether these mentally ill persons are fit enough to face trial for the
offences for which they had been charged; and the respective courts
are also not keeping track of the cases and there has been no regular
posting of the cases for long periods. Consequently, several mentally
ill undertrial prisoners have remained in the psychiatric hospitals
for long periods.
2) In one case in Kerala, an undertrial prisoner has been in
psychiatric hospital for 38 years. In another case in Uttar Pradesh,
an undertrial prisoner has been in psychiatric hospital for more than
34 years, though the maximum punishment for the offence alleged
against him is seven years. There are several undertrial prisoners
2
who have been in psychiatric hospitals for more than 15 years.
Whether these persons have been subjected to periodic medical
check-up is not known. The nature of their ailments are also not
very clear. In some cases, it has been vaguely stated that they suffer
from 'mental abnormality'. Many of these undertrial prisoners have
been charged with offences of trifle nature, for which maximum
sentence prescribed is hardly six months. We find that in many of
these cases, the undertrial prisoners have been confined to a
psychiatric hospital for more than the period of maximum sentence.
It is clear that in such cases, the trial courts have not considered
whether the undertrial prisoners could be released pending
investigation or trial under Section 330(1) of the Code of Criminal
Procedure (for short, the Code). It is also possible that no friend or
relative of the prisoner came forward with sufficient security and
seek release under the said provision.
3) There are also several cases where the undertrial prisoners
have been charged for offence under Section 302 IPC. In such cases
also, it appears that there is no periodic medical check-up, nor
periodic consideration by the court as to whether they would be in a
position to face trial.
4) Chapter XXV of the Code deals with the accused persons of
unsound mind. Section 328 prescribes the procedure in case of
accused being a mentally ill person. When a Magistrate has reason
to believe that an accused against whom an enquiry is being held, is
3
of unsound mind, he shall inquire into the fact of such unsoundness
of mind and shall cause such person to be examined by the civil
surgeon of the district or such other medical officer as the State
Government may direct, and thereupon shall examine such surgeon
or other officer as a witness and shall reduce the examination to
writing, and pending such examination and inquiry, the Magistrate
may deal with such person in accordance with the provisions of
Section 330. On such inquiry, if the Magistrate is of the opinion that
the accused is of unsound mind, he shall record a finding to that
effect and shall postpone further proceedings in the case. Section
329 provides that if at the trial of any person, it appears to the
Magistrate or Court that the person tried is of unsound mind, the
Magistrate or Court shall in the first instance, try the fact of such
unsoundness and incapacity, and if satisfied on such evidence that
the accused is of unsound mind and consequently incapable of
making his defence, the Magistrate shall record a finding to that
effect and shall postpone further proceedings in the case.
4.1) Section 330 of the Code provides for the release of the
mentally ill person pending investigation or trial. The said section is
extracted below:
"(1) Whenever a person is found, under Section 328
or 329, to be of unsound mind and incapable of making his
defence, the Magistrate or Court, as the case may be, whether
the case is one in which bail may be taken or not, may release
him on sufficient security being given that he shall be properly
taken care of and shall be prevented from doing injury to
himself or to any other person, and for his appearance when
required before the Magistrate or Court or such officer as the
Magistrate or Court appoints in this behalf.
4
(2) If the case is one in which, in the opinion of the Magistrate
or Court, bail should not be taken, or if sufficient security is
not given, the Magistrate or Court, as the case may be, shall
order the accused to be detained in safe custody in such place
and manner as he or it may think fit, and shall report the
action taken to the State Government:
Provided that no order for the detention of the
accused in a lunatic asylum shall be made otherwise than in
accordance with such rules as the State Government may have
made under the Indian Lunacy Act, 1912 (4 of 1912)."
Section 331 provides for resumption of inquiry or trial when the
person concerned ceases to be of unsound mind.
4.2) Section 337 of the Code describes the procedure where a
prisoner of unsound mind is reported capable of making his defence.
It provides that if the Inspector General of Prisons (in case where
prisoner is in jail) or two visitors of an asylum (where the prisoner is
in a lunatic asylum) certify that the prisoner is capable of making his
defence such certificate shall be received as evidence and the
Court/Magistrate will deal with such persons as provided under
Section 332 by proceedings with the inquiry or trial. Section 338
provides the procedure where a person of unsound mind detained, is
declared fit to be released. The said Section provides that if a person
of unsound mind is detained under the provisions of sub-section (2)
of Section 330 and the Inspector General or visitors certify that, in
his or their judgment, he may be released without danger of his
doing injury to himself or any other person, the State Government
may order him to be released, or to be detained in custody, or to be
transferred to a public lunatic asylum if he has not already been sent
to such an asylum; and, in case it orders him to be transferred to an
5
asylum, may appoint a Commission, consisting of a judicial and two
medical officers. Sub-section (2) of Section 338 provides that such
Commission shall make a formal inquiry into the state of mind of
such person, take such evidence as is necessary, and shall report to
the State Government, which may order his release or his detention
as it thinks fit.
4.3) Section 339 of the Code provides for delivery of the person of
unsound mind to the care of relative or friend and is extracted
below:
"(1) Whenever any relative or friend of any person detained
under the provisions or section 330 or section 335 desires that
he shall be delivered to his care and custody, the State
Government may, upon the application of such relative or
friend and on his giving security to the satisfaction of such
State Government, that the person delivered shall -
(a) be properly taken care of and prevented
from doing injury to himself or to any
other person;
(b) be produced for the inspection of such
officer, and at such times and places, as the
State Government may direct;
(c) in the case of a person detained under
sub-section (2) of Section 330, order such
person to be delivered to such relative or friend.
(2) If the person so delivered is accused of any offence, the
trial of which has been postponed by reason of his being of
unsound mind and incapable of making his defence, and the
inspecting officer referred to in clause (b) of sub-section(1),
certifies at any time to the Magistrate or Court that such
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 proceed in accordance with the provisions of Section 332,
and the certificate of the inspecting officer shall be receivable
6
as evidence."
5. Section 30 of the Prisoners Act, 1900 provides how prisoners
of unsound mind are to be dealt with. Sub-sections (1), (2) and (3) of
Section 30 are extracted below:-
"30. Lunatic prisoners how to be dealt with - (1)
Where it appears to the State Government that any person
detained or imprisoned under any order or sentence of any
Court is of unsound mind, the State Government may, by a
warrant setting forth the grounds of belief that the person is of
unsound mind, order his removal to a lunatic asylum or other
place of safe custody within the State there to be kept and
treated as the State Government directs during the remainder
of the term for which he has been ordered or sentenced to be
detained or imprisoned or, if on the expiration of that term it
is certified by a medical officer that it is necessary for the
safety of the prisoner or others that he should be further
detained under medical care or treatment, then until he is
discharged according to law.
(2) Where it appears to the State Government that
the prisoner has become of sound mind, the State Government
shall, by a warrant directed to the person having charge of the
prisoner, if still liable to be kept in custody, remand him to the
prison from which he was removed, or to another prison
within the State or if the prisoner is no longer liable to be kept
in custody, order him to be discharged.
(3) The provisions of Section 9 of the lunatic
Asylums Act, 1858 shall apply to every person confined in a
lunatic asylum under sub-section (1), after the expiration of
the term of which he was ordered or sentenced to be detained
or imprisoned; and the time during which a prisoner is
confined in a lunatic asylum under that sub-section shall be
reckoned as part of the term of detention or imprisonment
which he may have been tried or sentenced by the court to
undergo."
[Note: Section 9 of Lunatic Asylum Act, 1858 (now
repealed) referred to in sub-section (3) provided that it shall be
lawful for three of the visitors of any asylum, of whom one
shall be medical officer, to order the discharge of any person
detained in such asylum; and when such order is given, if the
person is detained under the order of any public officer, notice
of the order of discharge shall be immediately communicated
to such officer. The said Section corresponds to Section 40 of
the Mental Health Act, 1987]
7
While Section 330 of the Code deals with accused of unsound
mind in custody pending investigation or trial, Section 30 of
Prisoners Act deals with convicted persons in jail, who become
mentally unsound.
6) We may also refer to the relevant provisions of the Mental
Health Act, 1987 (for short the `Act') which repealed the Indian
Lunacy Act, 1912.
6.1) Section 27 of the Act provides that an order under Section 30
of the Prisoners Act, 1900 or an order under Section 330 of the Code
directing the reception of a mentally ill prisoner into any psychiatric
hospital/ nursing home shall be sufficient authority for the
admission of such person in such hospital/nursing home.
6.2) Section 37 requires the concerned government to appoint not
less than five visitors to each psychiatric hospital/nursing home.
Section 38 provides for monthly inspection by the visitors and
authorizes them to make remarks in regard to the management and
condition of the psychiatric hospital/nursing home and of the in-
patient thereof. Section 39 of the Act provides that where any
person is detained under Section 330 of the Code, Inspector General
of Prisons (where such person is detained in a jail), and all or any
three of the visitors (where such person is detained in a psychiatric
hospital/nursing home), shall once in every three months visit such
person at the place where he is detained in order to assess the state
8
of mind of such person and make a report thereon to the authority
under whose order such person is so detained. Sub-section (2)
authorizes the State Government to empower any of its officers to
discharge the functions of the Inspector-General of Prisons under
Section 39(1). Sub-section (3) provides that the medical officer in
charge of a psychiatric hospital/nursing home where any person is
detained under the provisions of Section 330 shall once in six
months, make a special report regarding the mental and physical
conditions of such persons, to the authority under whose order such
person is detained. Sub-section (4) provides that every person who is
detained in jail under Section 330 of the Code, shall be visited at
least once in every three months by a psychiatrist or where a
psychiatrist is not available, by a medical officer empowered by the
State Government, and such psychiatrist/medical officer shall make
a special report regarding the mental and physical conditions of such
persons to the authority under whose order such person is detained.
6.3) Part II of Chapter V of the Act deals with discharge. Section
40 of the Act empowers the medical officer in charge of a psychiatric
hospital/nursing home to discharge any mentally ill prisoner, on
recommendation of two medical practitioners one of whom shall
preferably be a psychiatrist in the manner provided in Section 30 of
Prisoners Act, 1900 or in any other relevant law.
7) From the reports filed by the Registries of various High
Courts it is evident that the monthly, quarterly and half-yearly
9
inspection/examination are not regularly being carried out as
required under Sections 38 and 39 of the Act and the
magistrates/courts authorizing the prisoners to be detained are not
receiving the quarterly/half-yearly reports under sub-sections (1), (3)
and (4) of Section 39. It is unfortunate that the provisions of
Sections 38 and 39 of the Act are not being implemented effectively.
8) As there are large number of mentally ill under-trial
prisoners in various psychiatric hospitals/nursing homes, we
consider it just and proper to issue some general directions to avoid
such mentally ill persons languishing in psychiatric hospitals for long
periods:
(i) whenever a person of unsound mind is ordered to be
detained in any psychiatric hospital/nursing home under Section
330(2) of the Code, the reports contemplated under Section 39 shall
be submitted to the concerned Court/Magistrate periodically. The
Court/Magistrate shall also call for such reports if they are not
received in time. When the reports are received, the
Court/Magistrate shall consider the reports and pass appropriate
orders wherever necessary. In regard to prisoners covered by
sub-section (1) of Section 30 of the Prisoners Act, 1900, the
procedure prescribed by sub-sections (2) and (3) of that Section read
with Section 40 of the Mental Health Act, 1987 shall be followed.
(ii) Wherever any undertrial prisoner is in jail for more
10
than the maximum period of imprisonment prescribed for the
offence for which he is charged (other than those charged for offences
for which life imprisonment or death is the punishment), the
Magistrate/Court shall treat the case as closed and report the matter
to the medical officer in charge of the psychiatric hospital, so that the
Medical Officer incharge of the hospital can consider his discharge as
per Section 40 of the Act.
(iii) In cases where, the under trial prisoners (who are not
being charged with offence for which the punishment is
imprisonment for life or death penalty), their cases may be
considered for release in accordance with sub-section (1) of Section
330 of the Code, if they have completed five or more years as
inpatients.
(iv) As regards the undertrial prisoners who have been
charged with grave offences for which life imprisonment or death
penalty is the punishment, such persons shall be subjected to
examination periodically as provided in sub-sections (1), (3) and (4)
of Section 39 of the Act and the officers named therein (visitors,
medical officer in charge of the hospital and the examining medical
officer respectively) should send the reports to the court as to
whether the under trial prisoner is fit enough to face the trial to
defend the charge. The Sessions Courts where the cases are pending
should also seek periodic reports from such hospitals and every such
case shall be given a hearing atleast once in three months. The
11
Sessions Judge shall commence the trial of such cases as soon as it is
found that such mentally ill person has been found fit to face trial.
9) Copy of this order is directed to be sent to the Registrars
General of various High Courts and the Chief Secretaries of the State
Governments/Union Territories to take necessary steps and follow
up action, and submit report to this Court as to the steps taken in
pursuance of this order.
10) The matters are adjourned by three months.
(N. Annapurna) (Vijay Aggarwal)
Court Master Court Master
12
Monday 15 October 2012
guidelines to avoid illegal detention of mentally ill person
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