Thus, in law, there exists a clear distinction between a mentally ill person and a person suffering from mental retardation.
In Suchita Srivastava and another vs. Chandigarh Administration(2009) 9 SCC 1, the Supreme Court held that this distinction can be collapsed for the purpose of empowering these respective classes of persons, but, cannot be disregarded so as to interfere with their personal autonomy.
25. Reverting to Section 328 Cr.P.C., the inquiry in respect of
persons of unsound mind is governed by Section 328(3) Cr.P.C., whereas, the enquiry in respect of persons suffering from mental retardation is governed by Section 328 (4) Cr.P.C. In either category, the first stage is that, if the Magistrate receives information that the accused is of unsound mind or
suffers from mental retardation, he is required to determine whether such condition, in praesenti, renders the accused incapable of entering defence. If the answer to this question is in the affirmative, the Code prescribes two different consequences depending on whether the accused is suffering from unsoundness of mind or mental retardation.
26. If the case falls in category one (persons of unsound mind), the Magistrate is required to examine the record of evidence, hear the advocate for the accused, and may discharge the accused if he finds that no prima facie case has been made out. If a prima facie case is made out, the Magistrate is required to follow the procedure set out in the proviso to Section 328 (3) Cr.P.C. If the case falls in category two (persons suffering
from mental retardation), Section 328(4) Cr.P.C. empowers the Magistrate to immediately order closure of the enquiry and direct that the accused be dealt with under Section 330 Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018
CORAM:
Mr. JUSTICE P.N. PRAKASH
PRONOUNCED ON: 04.09.2020.
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