Law Web: Madras High court guidelines for trial of person of unsound mind in criminal case

54. In fine, this Court issues the following directions:

i. the trial Court shall conduct enquiry under the first part of

Section 329(2) Cr.P.C., to find out if the accused in this case is

capable of entering into his defence in praesenti;

ii. 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;

iii. in the event of the trial Court holding that the accused is not

mentally fit to face the trial, the trial Court shall conduct an

enquiry under the second part of Section 329(2) Cr.P.C. and

afford an opportunity to the family of the accused to engage a

lawyer and 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

enquiry, for whom, remuneration shall be paid by the local

Legal Services Authority;

iv. in the enquiry, 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;

v. the trial Court may also enquire the doctors who treated the

accused after his arrest while he was in judicial custody;

vi. the counsel for the accused may also be permitted to place

materials before the Court in support of the case of the accused;

vii. at the conclusion of the enquiry, 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 and follow the procedure set out in the proviso (a) to

Section 330(3) Cr.P.C.;

viii. 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. 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.

55. 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. In this context, it may be worthwhile to quote Mr.G.P.Pilania, M.P., from his speech in the Parliament on 18.12.2008 when the 2009 amendments were introduced:

“The sixth point pertains to inquiry and trial of persons of

unsound mind, who cannot look after themselves, and who are

persons who have been betrayed by God and society. A special

provision to take care of those who are of unsound mind has been made, which is laudable.” (emphasis supplied)

The Courts must, therefore, act and discharge their constitutional obligations as ever-vigilant sentinels of the rights of these persons.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan S/o.Muniyappan Aanurpatty Vs State.

CORAM:

THE HON'BLE Mr. JUSTICE P.N. PRAKASH

PRONOUNCED ON: 04.09.2020.

Criminal Original Petition filed under Section 482 Cr.P.C. to postpone the trial in connection with S.C.No.123 of 2008 on the file of the III Additional District and Sessions Court, Salem, till the accused is capable of entering the defence or mentally sound to face the trial as contemplated under Section 84 IPC and Sections 328 and 329 Cr.P.C.

ORDER

This case was taken up through video conferencing.

2. On 12.05.2006, Kaliyappan, who was presumably suffering from

some mental illness, was taken by his father Muniyappan, to a native doctor,

Varadha Naickar in Mulluchettipatti Forest, Omalur Taluk, Salem, 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.

3. On these allegations, a case in Crime No.126 of 2006 was

registered for the offence under Section 302 IPC against Kaliyappan.

According to the police, they arrested him on 13.05.2006 and sent him to

judicial custody. While Kaliyappan was in custody, the District Munsif-cumJudicial Magistrate, Omalur, passed an order dated 07.07.2006 (D.No.1469

of 2006), directing that Kaliyappan should be examined by specialists in the

Institute of Mental Health (IMH), Kilpauk, Chennai – 10. Accordingly,

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Kaliyappan was admitted as an in-patient in the IMH, Kilpauk, on

25.08.2006 and was given treatment for his mental illness.

4. Since the police did not file final report within 90 days, the

counsel for Kaliyappan filed a petition for statutory bail under Section 167(2)

Cr.P.C., in which, the District Munsif-cum-Judicial Magistrate, Omalur,

passed the following order on 30.08.2006:

“Order pronounced.

This petitioner filed the bail application under Section 167(2)

Cr.P.C. on the ground that the accused is in judicial custody for more

than the statutory period. Charge sheet not yet filed. It is an offence

under Section 302 IPC. The accused is in judicial custody from

13.05.2006. Since the accused is under judicial custody for more

than 90 days and filed bail application under mandatory provision

under Section 167(2) Cr.P.C., bail is granted. The accused is of

unsound mind. Hence, the accused will be released on bail on

executing a bond by the parent/guardian who undertook to give

medical treatment to the accused for a sum of Rs.5,000/- along with

two sureties for a like sum, the accused will be enlarged on bail.

Since the accused is of unsound mind and is on medical care, no

condition is imposed. The parent/guardian has to look after the

accused carefully and give proper medical treatment and should

produce the accused whenever required by the Court.”

5. At this juncture, it may be relevant to extract the observation

report dated 08.02.2007 that was submitted by the IMH, Kilpauk, to the

District Munsif-cum-Judicial Magistrate, Omalur, as that would clearly throw

light on the mental condition of Kaliyappan while he was in judicial custody.

“Mr. Kaliappan, S/o Muniappan sent with reception order

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cited above, was admitted in Ward No.1 and was observed from

25.08.2006.

During observation, the patient has the following symptoms:

1 Decreased psychomotor activity

2 Appeared pre-occupied

3 Avoids eye to eye contact; did not have any emotional

expression

4 Apathetic mood

5 Neglected self care

Based upon the above, we are of the opinion that Mr.

Kaliappan is suffering from a major mental disorder schizophrenia.

He was treated till 06.10.2006. On 06.10.2006, Mrs.

Perathayee and Mr. Irulappan who have executed the bail bond for

the patient Kaliyappan, patient's father Muniappan and one more

relative has reported. As they were desirous of continuing treatment

at Psychiatric OP Government Mohan Kumaramangalam Medical

College Hospital, Salem, necessary discharge advice with details

were given to them and the patient was discharged on 06.10.2006

and sent with them. The original bail bond was returned to the

Superintendent, Central Prison, Salem, vide reference No.IP Cr.

No.16/W2/2006 dated 06.10.2006 of Institute of Mental Health,

Chennai – 10.”

6. While so, the police completed the investigation and filed a final

report in P.R.C.No.15 of 2017 against Kaliyappan for the offence under

Section 302 IPC before the District Munsif-cum-Judicial Magistrate, Omalur.

Surprisingly, the Magistrate commenced the proceedings under Sections 207

and 209 Cr.P.C. and committed the case to the Court of Session, by order

dated 03.03.2008 in P.R.C. No.15 of 2007. Even during the committal

proceedings, the Magistrate did not take any steps to satisfy himself as to

whether Kaliyappan was in a sound state of mind to understand the

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proceedings.

7. On committal to the Court of Session, the case was taken up on

file as S.C.No.123 of 2008 and the Principal Sessions Judge, Salem, framed

charges under Section 506(II) and 302 IPC on 18.09.2008, questioned

Kaliyappan and recorded his plea as “not guilty”.

8. After framing the charges, the Principal Sessions Judge, Salem,

made over the case for trial to the Additional District Court (Fast Track Court

No.II), Salem. From 2008 to 2011, nothing happened in the case. When the

Court decided to commence trial, the counsel for Kaliyappan filed two

petitions, viz., Crl.M.P. No. 4 of 2011 under Section 91 Cr.P.C. and Crl.M.P.

No.7 of 2011 under Section 45 of the Evidence Act for summoning the

medical records of Kaliyappan from the IMH, Kilpauk and for having him

examined by a doctor to decide his mental condition, respectively. The

prosecution filed a counter opposing the prayers. The trial Judge dismissed

Crl.M.P. No.7 of 2011, but, allowed Crl.M.P. No.4 of 2011 and called for the

records from the IMH, Kilpauk. Accordingly, the Director, the IMH,

Kilpauk, by letter dated 19.10.2012, sent copies of the treatment records of

Kaliyappan to the Court. On perusal of the records, the learned Judge wanted

to satisfy himself as to whether Kaliyappan was mentally fit to face trial and

so, he examined Dr.Sivalingam (C.W.1) on 05.11.2012.

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9. Dr.Sivalingam (C.W.1), in his evidence, stated about the mental

illness of Kaliyappan while he was under treatment at the IMH, Kilpauk,

from 25.08.2006 to 06.10.2006, but, he had nothing to say with regard to the

mental condition of Kaliyappan as on 05.11.2012.

10. It appears that the case was transferred from the file of the

Additional District Court (Fast Track Court No.II), Salem, to the file of the

III Additional District and Sessions Court, Salem, for trial. The III Additional

District and Sessions Judge, Salem, passed an order in Crl.M.P.No.59 of

2017 in S.C.No.123 of 2008 on 30.06.2017, directing the production of

Kaliyappan before a Medical Board in the Government Hospital, Salem, for

medically examining him in order to determine whether he was mentally fit

for facing the trial.

11. Accordingly, Kaliyappan was medically examined by

Dr.N.Balasubramani, Assistant Professor, Department of Psychiatry,

Government Mohan Kumaramangalam Medical College & Hospital, Salem,

who submitted a report dated 31.08.2017 to the trial Court, wherein, it is

stated as follows:

“On admission, he was said to be preoccupied and idle,

wandering tendency, poor self care and sometimes found to be

talking and smiling to himself, on examination, he was calm and

poorly communicating and speaks only few words. After 5 days of

admission and treatment, his communication is improving. However,

he will not be able to understand the court proceedings.

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At present, he is not fit to face the trial.

He needs continuous follow up and regular treatment in

Psychiatry OP once in 15 days for 3 months and again, he may be

sent for re-assessment about fitness to face the trial after 3 months.”

12. While so, fearing that the trial Court may resume the trial

without ascertaining the mental state of Kaliyappan, the present original

petition has been filed by Muniyappan on behalf of his son Kaliyappan.

13. The sequence of events, narrated above, shows that Kaliyappan

was suffering from mental illness since the time of his arrest in May 2006

and the situation had not improved till 31.08.2017. We are now in 2020 and

this case is hanging fire in the trial Court without any progress. There is no

point in keeping this case pending indefinitely. If it is found that Kaliyappan

was suffering from mental illness even at the time of commission of the

offence, he would have to be given the benefit of the exception under Section

84 IPC and further proceedings dropped. But, how to do it, is the question

that stared at this Court.

14. To untangle this legal conundrum, this Court thought it fit to

appoint Mr. Sharath Chandran, Advocate as Amicus Curiae to assist.

15. Mr. Sharath Chandran assiduously traced the provisions relating

to trial of persons of unsound mind from the 1861 Code of Criminal

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Procedure, to the present Code and submitted that till 2009, all the Codes

contemplated mere postponement of the trial if it was found that the accused

was not capable of defending himself, indefinitely and that the anomaly in

the procedure came to the fore through Miss Veena Sethi vs. State of Bihar

and others,

1 wherein, the Supreme Court treated a letter as a public interest

litigation and examined the cases of mentally ill persons detained in the

Hazaribagh Central Prison in Bihar.

16. What came as a rude shock to the Supreme Court was the case of

one Gomia Ho, the facts of which, would be heartrending. Gomia Ho was

convicted of the offence under Section 304(II) IPC on 26.03.1945 and was

sentenced to undergo three years rigorous imprisonment. While he was

undergoing the sentence, he attempted to commit suicide. Therefore, a fresh

case under Section 309 IPC (attempt to commit suicide) was registered

against him. During the course of enquiry, it came to light that he was of

unsound mind and therefore, neither the enquiry nor the trial against him

proceeded for 20 years, though he had completed the sentence in the case in

which he was convicted of the offence under Section 304 (II) IPC. Had he

been tried and convicted of the offence under Section 309 IPC, the maximum

sentence would have been one year simple imprisonment. As the Supreme

Court started digging in, more skeletons surfaced from behind the brick walls

1 (1982) 2 SCC 583

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of the Hazaribagh Central Prison, Bihar.

17. Mr. Sharath Chandran continued his submissions and placed

before this Court, the 154

th Report of the Law Commission of India, which

was then headed by Justice K. Jayachandra Reddy, which addressed this grim

issue and suggested a panacea in incorporating several far-reaching

amendments in Chapter XXV Cr.P.C. It may be profitable to extract the

relevant portion from the said report:

“7 The Code provides no time limit for which the

postponement will subsist and the only safeguard against indefinite

confinement is the obligation to send six monthly medical reports on

the mental condition of the accused to the State Government. This

safeguard in no way protects the accused against needless, if not

lifelong, incarceration has been demonstrated by Veena Sethi v.State

of Bihar. Veena Sethi unearths from the jails of Bihar cases of

individuals whose trials were postponed because they were incapable

of defending themselves. Subsequent to postponement of their trials

they were lodged in Hazaribagh Central Jail wherein they were

detained for periods ranging from 19 to 37 years. This detention

continued even after the accused regained sanity.

8 The confinement of insane undertrials in jail even after

they have regained sanity has been held to be an infringement of their

constitutional rights under Article 21. Section 428 of the Cr.P.C.

provides that time spent by the accused as an undertrial should be set

off with the sentence ordered on conviction. This section can be

invoked only after the trial is concluded. In Veena Sethi's case when

insane undertrial had spent periods in jail longer than the maximum

period of sentence that could be ordered against them, the Supreme

Court ordered their release invoking this section.

12 The trial of a person of unsound mind who is incapable

of defending himself is postponed to promote fair trial. If this

postponement operates for periods as long as 10 years then even

when the accused regains sanity, he may still be incapable of

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defending himself not due to unsoundness of mind but because the

evidence has gone stale or witnesses are lost. The right of speedy trial

as extended to the insane undertrial mandates that a time limit should

be fixed for the period of postponement of trial. Indefinite

postponement is an infringement of the personal liberty and rights of

insane undertrials.

13 It is the standard of treatability that should provide

justification for postponement of enquiry or trial; hence, treatability

and not dangerousness should be the guiding force of sections 328

and 329. It is the prospect of recovery alone which explains the

postponement of enquiry or trial of persons of unsound mind and the

continuance of the proceedings for persons for who are not of

unsound mind. The criterion of treatability should be accorded

recognition at each stage of the enquiry or trial. At the stage of

observation, medical opinion should be sought not only on whether

the accused was of unsound mind and incapable of defending himself

but also whether the mental condition was amenable to treatment. For

the accused whose mental condition is diagnosed as incurable at this

stage, a procedure different from postponement needs to be devised.

For those categorized as treatable, the time required to regain fitness

needs to be inquired. The time needed for treatment should be

accorded due cognizance in fixing the period of postponement.

14 All accused categorized as treatable may not respond to

treatment. In order that personal liberty is not arbitrarily deprived in

the name of therapy, it is essential that the period for which the

enquiry or trial can be postponed should be subject to limitation.

15 For the accused whose condition is treatable and who

can be better equipped to defend themselves, postponement of trial

furthers fair trial. For incurables, postponement is of little utility and

only operates as a mechanism for punishing without trial. It,

therefore, seems appropriate that they should be discharged of the

charged offence. If their mental condition makes them a danger to

themselves or others, i.e., they are incapable of looking after

themselves and nobody is available who is willing to look after them,

then the procedure for involuntary civil commitment should be

initiated to institutionalise these persons.” (emphasis supplied)

18. The suggestions made by the Law Commission resulted in the

Code of Criminal Procedure (Amendment Bill) 2006, which was presented

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for Parliamentary scrutiny. While that was pending, the Supreme Court came

across yet another case from Assam in News Item “38 Yrs. in Jail Without

trial” published in Hindustan Times, in Re.

, wherein, the Court took

cognizance of a news item published in the Indian Express stating that one

Machal Lalung, a resident of Assam, had continued to languish as an

undertrial prisoner in a psychiatric hospital for 38 years. Noticing the

deficiency in the law relating to the trial of persons with unsound mind, the

Supreme Court issued a slew of directions under Article 142 of the

Constitution of India prescribing timeline for discharge of such prisoners,

except in cases punishable with life imprisonment and death penalty.

19. To continue the narration, in this backdrop, the Parliament

enacted the Code of Criminal Procedure Amendment Act, 2009 (Act 5 of

2009) amending Sections 328, 329 and 330 of the Cr.P.C. In Section 328,

Clause (1-A) was added, whereas, clause (3) was entirely substituted with

new clauses (3) and (4). Section 329 also witnessed near identical

amendments vide the insertion of Clause (1-A) and substitution of the

existing clause (2) with entirely new clauses (2) and (3). Section 328 and

Section 329(2) Cr.P.C. read as follows :

“328. Procedure in case of accused being lunatic:

(1) When a Magistrate holding an inquiry has reason to

2 (2007) 15 SCC 18

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believe that the person against whom the inquiry is being held is of

unsound mind and consequently incapable of making his defence, the

Magistrate 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.

(1A) If the civil surgeon finds the accused to be of unsound

mind, he shall refer such person to a psychiatrist or clinical

psychologist for care, treatment and prognosis of the condition and the

psychiatrist or clinical psychologist, as the case may be, shall inform

the Magistrate whether the accused is suffering from unsoundness of

mind or mental retardation:

PROVIDED that if the accused is aggrieved by the information

given by the psychiatrist or clinical psychologist, as the case may be, to

the Magistrate, he may prefer an appeal before the Medical Board

which shall consist of:-

(a) head of psychiatry unit in the nearest government

hospital; and

(b) a faculty member in psychiatry in the nearest medical

college.

(2) Pending such examination and inquiry, the Magistrate may

deal with such person in accordance with the provisions of section

330.

(3) If such Magistrate is informed that the person referred to in

sub-section (1A) is a person of unsound mind, the Magistrate shall

further determine whether the unsoundness of mind renders the

accused incapable of entering defence and if the accused is found so

incapable, the Magistrate shall record a finding to that effect, and shall

examine the record of evidence produced by the prosecution and after

hearing the advocate of the accused but without questioning the

accused, if he finds that no prima facie case is made out against the

accused, he shall, instead of postponing the enquiry, discharge the

accused and deal with him in the manner provided under Section 330.

Provided that if the Magistrate finds that a prima facie case is

made out against the accused in respect of whom a finding of

unsoundness of mind is arrived at, he shall postpone the proceeding for

such period, as in the opinion of the psychiatrist or clinical

psychologist, is required for the treatment of the accused, and order the

accused to be dealt with as provided under Section 330.

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(4) If such Magistrate is informed that the person referred to

in sub-section (1A) is a person with mental retardation, the Magistrate

shall further determine whether the mental retardation renders the

accused incapable of entering defence, and if the accused is found so

incapable, the Magistrate shall order closure of the inquiry and deal

with the accused in the manner provided under Section 330.

329. Procedure in case of person of unsound mind tried before

Court:

(2) If such Magistrate or Court is informed that the person

referred to in sub-section (1A) is a person of unsound mind, the

Magistrate or Court shall further determine whether unsoundness of

mind renders the accused incapable of entering defence and if the

accused is found so incapable, the Magistrate or Court shall record a

finding to that effect and shall examine the record of evidence

produced by the prosecution and after hearing the advocate of the

accused but without questioning the accused, if the Magistrate or

Court finds that no prima facie case is made out against the accused,

he or it shall, instead of postponing the trial, discharge the accused and

deal with him in the manner provided under Section 330.

Provided that if the Magistrate or Court finds that a prima facie

is made out against the accused in respect of whom a finding of

unsoundness of mind is arrived at, he shall postpone the trial for such

period, as in the opinion of the psychiatrist or clinical psychologist, is

required for the treatment of the accused.”

20. A close reading of Section 328 Cr.P.C. shows that it deals with

(a) persons of unsound mind and (b) persons suffering from mental

retardation at the stage of an inquiry. The expression “inquiry” is defined in

Section 2(g) to mean every inquiry, other than a trial, under the Code. These

may include proceedings relating to remand, bail, taking of cognizance,

issuance of process, furnishing of copies, committal proceedings and framing

of charges. In this case, though there were sufficient materials to indicate that

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Kaliyappan was suffering from mental illness even at the stage of committal,

no steps were taken by the committal Court under Section 328 Cr.P.C.

21. The interesting aspect about Section 328 Cr.P.C lies in the

different sets of procedure contemplated for inquires against persons of

unsound mind and those suffering from mental retardation. The expression

“unsoundness of mind” occurring in Sections 328 and 329 Cr.P.C has not

been defined anywhere. Under the Indian Lunacy Act, 1912, a lunatic was

defined under Section 3(5) to mean an idiot or a person of unsound mind.

The 1912 Act was repealed by the Mental Health Act, 1987. The definition of

“lunatic” was replaced by a definition of mental illness which read as under:

Section 2(l):

“mentally ill person” means a person who is in need of

treatment by reason of any mental disorder other than mental

retardation”.

22. The Mental Health Act, 1987, has now been repealed by the

Mental Healthcare Act, 2017. Section 2(s) contains an expanded definition of

the expression “mental illness” which runs as under:

“ “mental illness” means a substantial disorder of thinking,

mood, perception, orientation or memory that grossly impairs

judgment, behaviour, capacity to recognise reality or ability to meet

the ordinary demands of life, mental conditions associated with the

abuse of alcohol and drugs, but does not include mental retardation

which is a condition of arrested or incomplete development of mind

of a person, specially characterised by sub-normality of

intelligence;”

(emphasis supplied)

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23. Thus, under the Mental Health Act, 1987 and its successor, the

Mental Healthcare Act, 2017, mental retardation was carved out as a separate

category aside from other forms of mental illness. The definition of mental

illness found in the Persons With Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 (for short “the

Disabilities Act”) also maintains the aforesaid distinction. Despite the fact

that the Indian Lunacy Act, 1912 was repealed in 1987, the title clause of

Section 328 Cr.P.C. still uses the word “lunatic” even though the text of

Section 328 Cr.P.C. uses the words “unsoundness of mind” and “mental

retardation”. Mental retardation is defined in Section 2 (r) of the Disabilities

Act as under:

"Mental retardation" means a condition of arrested or

incomplete development of mind of a person which is specially

characterized by subnormality of intelligence.”

24. This definition has also been incorporated into Section 2(g) of

the National Trust for Welfare of Persons with Autism, Cerebral Palsy,

Mental Retardation and Multiple Disabilities Act, 1999. 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

, the Supreme Court held that this distinction

can be collapsed for the purpose of empowering these respective classes of

3 (2009) 9 SCC 1

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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

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with under Section 330 Cr.P.C.

27. Section 329 Cr.P.C, on the other hand, operates at the stage of

trial. In view of the decision of the Supreme Court in Hardeep Singh vs.

State of Punjab4

, the expression “trial” is the stage that commences upon

charges being framed. Section 329(1) Cr.P.C. is a verbatim reproduction of

Section 465 of the Code of Criminal Procedure, 1898. Prior to the 2009

Amendment, if, in the course of trial, it appears to the Magistrate or the Court

that the accused is of unsound mind and is incapable of making his defence,

the Magistrate or Court was required, in the first instance, to “try” the fact of

such unsoundness and incapacity, and on being satisfied of that fact (fact of

unsoundness and incapacity), shall record a finding to that effect and

postpone further proceedings in the case. Thus, the enquiry in Section 329(1)

Cr.P.C. was confined to the factum of unsoundness of mind and incapacity to

enter his defence before the trial Court at the stage of trial.

28. Vide the 2009 Amendment, clause (2) was substituted and clause

(3) was added to Section 329 Cr.P.C. A comparison of Section 329(2)

Cr.P.C. and Section 328(3) Cr.P.C. shows that except for the different stages

at which these two provisions operate, the text and procedure contemplated

therein are exactly the same. The first stage under Section 329(2) Cr.P.C. is

that if the Magistrate/Court receives information during trial that the accused

4 (2014) 3 SCC 92

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is of unsound mind, the Magistrate/Court is required to determine whether

such condition, in praesenti, renders the accused incapable of entering

defence. If the answer is in the affirmative, the Magistrate/Court is required

to examine the record of evidence, hear the advocate for the accused, and

may discharge the accused if he/it finds that no prima facie case has been

made out. If a prima facie case is made out, the Magistrate/Court is required

to follow the procedure set out in the proviso to Section 329 (2) Cr.P.C.

29. Interestingly, the examination of a prima facie case under

Section 329(2) Cr.P.C. textually, is confined to persons of unsound mind

only. Section 329(3) Cr.P.C. refers to the procedure to be followed if a prima

facie case is made out and the accused suffers from mental retardation. The

twin requirements for clause (3) to apply is that first, the accused must be

medically certified to be a mentally retarded person, and secondly, the

Magistrate or Court must find a prima facie case against such an accused. If

these twin conditions are satisfied, then, there is a statutory injunction against

the Court from holding trial which is clear from the use of the words “shall

not hold the trial” occurring in Section 329(3) Cr.P.C. The mentally retarded

accused is then required to be dealt with under the proviso (b) to Section 330

(3) Cr.P.C.

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30. The next question is, 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.

Mental retardation is conspicuously absent in clauses (1-A) and (2) of

Section 329 Cr.P.C., whereas, it is expressly alluded to in clauses (1-A) and

(2) of Section 328 Cr.P.C. If this Court were to construe Section 329 (1-A)

and (2) Cr.P.C. literally, the result would be that these provisions would

apply only to persons of unsound mind and not to accused persons who are

mentally retarded. Such an interpretation, in the considered opinion of this

Court, would lead to several anomalous consequences.

31. In the first place, if clause (1-A) of Section 329 Cr.P.C. is

confined to persons of unsound mind alone, then, there would be no

provision for medical examination of mentally retarded persons at the stage

of trial. Secondly, if Section 329(2) Cr.P.C. is confined to persons of

unsound mind alone, it would appear that the avenue of discharge available

at the stage of trial is confined only to persons of unsound mind. As noticed

supra, Section 329(3) Cr.P.C. applies only if there exists a prima facie case

against the mentally retarded accused. 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

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consequences impel this Court to abandon the literal interpretation of

Sections 329(1-A) and (2) Cr.P.C. This is in keeping with the wellrecognized rules of interpretation that have been succinctly set out by Das

Gupta, J. in Mahadeolal Kanodia vs. Administrator General of West

Bengal

, wherein, it was observed as under:

“... if the strict grammatical interpretation gives rise to an

absurdity or inconsistency, such interpretation should be discarded and

an interpretation which will give effect to the purpose the Legislature

may reasonably be considered to have had will be put on the words, if

necessary even by modification of the language used. .”

32. Having regard to the legislative history of these provisions, there

appears to be no warrant in adopting a literal construction of Section 329 (1-

A) and (2) Cr.P.C. Thus, 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. If so

construed, the provisions of this section can be harmoniously read in the

following manner :

i. If during 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

5 AIR 1960 SC 936

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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 Secton 329 (1-A) Cr.P.C. shall be

construed to subsume cases of mental retardation also.

ii. 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 defence. 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.

iii. 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.

iv. 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.

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The Magistrate/Court may postpone trial for such a period as

may be necessary for the treatment of the accused.

v. If there exists a prima facie case against an accused

who suffers 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.

33. Even though Section 329(2) Cr.P.C. contemplates a discharge, it

is necessary to notice that this expression has been used rather loosely. As

pointed out supra, Section 329 Cr.P.C. operates only at the stage of trial, i.e.,

post the stage of framing charges. Under the Code, provisions to discharge an

accused from the prosecution are available in Sections 227, 239 and 245

Cr.P.C. These powers are available to the trial Court only prior to the framing

of charges. However, Section 329(2) Cr.P.C operates at the stage of trial and

contemplates a discharge of the accused even after the framing of charges. A

fortiori, it would seem incongruous to import the tests evolved by the

Supreme Court in State of Orissa vs. Debendra Nath Padhi

under Section

227/239 Cr.P.C at the stage prior to framing of charges, to the discharge

contemplated under Section 329(2) Cr.P.C., which operates at the stage of

6 (2003) 2 SCC 711

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trial i.e., post the framing of charges. As pointed out by the Supreme Court in

Ratilal Bhanji Mithani vs. State of Maharashtra and others

, the normal

rule is that once a charge is framed, the Magistrate/Court has no power under

Section 227 Cr.P.C. or any other provision of the Code to reverse the charge

and discharge the accused. Section 329(2) Cr.P.C. is an exception to this rule.

Another consideration is the fact that an “acquittal” under Section 335

Cr.P.C. on the ground of unsoundness of mind at the time of commission of

the act is contemplated only when trial is resumed under Section 331 Cr.P.C.

after the accused is mentally fit to stand trial. Thus, a person with incurable

mental illness will never be in a position to face trial. Under these

circumstances, Section 329(2) Cr.P.C. can be gainfully employed to

discharge these persons by permitting their advocates to adduce materials to

prove their mental incapacity so as to avail the exception under Section 84 of

the IPC. These considerations impel this Court to hold that the expression

“discharge” cannot be construed as being akin to the tests applied by the

Court under Section 227 or 239 Cr.P.C.

34. It will be recalled that the mischief that Section 329(2) Cr.P.C.

was intended to address was, to prevent untreatable cases of unsoundness of

mind from getting caught in the vicious circle of postponement of trial, for an

indefinite period, which was the only course available to the Magistrate or

7 (1979) 2 SCC 179

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Court under the unamended Section 329 Cr.P.C. By virtue of the introduction

of sub-section (2) to Section 329 Cr.P.C., the Parliament has intended to

relieve these persons of their misery of being undertrials for life by

empowering the Courts to discharge them from the prosecution, if there is no

prima facie case. In order to effectuate the purpose of this amendment, it is

imperative that the advocate for the accused be permitted to produce

materials of sterling quality to establish that the accused would be entitled to

the exception under Chapter IV of the I.P.C. In the opinion of this Court, the

provisions of Section 329 Cr.P.C, particularly, in the light of the amendments

vide Act 5 of 2009, must be read purposively. The denial of such an

opportunity is likely to whittle down the wholesome power under Section

329 (2) Cr.P.C. into mere verbiage.

35. To recapitulate, till Act 5 of 2009, the Courts were powerless to

discharge an accused incapable of entering defence due to incurable mental

illness. The Courts had the power only to postpone the trial from time to

time. The new provision, viz., Section 329(2) Cr.P.C. broke this vicious circle

by empowering the trial Court to first determine whether a person was

mentally fit to face the trial and if the answer is in the negative, the Court

shall record a finding and shall examine the record of evidence produced by

the prosecution and after hearing the advocate of the accused, but, without

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questioning the accused, finds that “no prima facie case is made out against

the accused”, it shall, instead of postponing the trial, discharge the accused.

The two catch expressions in this provision are (a) “examining the record of

evidence produced by the prosecution” and (b) “hearing the advocate of the

accused, but, without questioning the accused.” The word “evidence” has

been used in a very loose sense and not in the sense of evidence that is

normally adduced in the trial.

36. The moot question is, what interpretation should be given to the

expression “no prima facie case is made out against the accused” used in

Section 329(2) Cr.P.C.

37. There is one school of thought which says that the aforesaid

expression would mean that the materials collected by the police should,

proprio vigore, be insufficient to connect the accused with the crime de hors

the probable defence that the accused may take. In other words, this orthodox

school is of the opinion that the exceptions under the IPC will have no role to

play in the enquiry by the trial Court under the second limb of Section 329(2)

Cr.P.C. Per contra, the contemporary school of thought is of the view that the

trial Court can legitimately decide the existence of a prima facie case not

only on the ground propounded by the orthodox school, but also by testing

the facts on the anvil of the exceptions under Chapter IV of the IPC.

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38. In support of the orthodox school of thought, Mrs. Kritika

Kamal placed reliance on the judgment of the Supreme Court in

Subramanian Swamy vs. Union of India, Ministry of Law and others

wherein, the Supreme Court has held that the exceptions in Section 499 IPC

can be determined only during trial and not at any stage before it.

39. As a riposte, in support of the contemporary school of thought,

Mr. Sharath Chandran placed reliance on the judgment of a Division Bench

of the Kerala High Court in Shibu vs. State of Kerala

, the judgment of a

learned Single Judge of this Court in Anuj Jermi vs. State

, the Division

Bench judgment of the Gauhati High Court in Abdul Latif vs. The State of

Assam11 and the judgment of a Full Bench of the Delhi High Court in

Neelam Mahajan Singh vs. Commissioner of Police

40. This Court carefully studied all the aforesaid five judgments

cited on either side.

41. To appreciate the rival contentions, it may not be out of place to

discuss certain fundamental legal principles.

8 (2016) 7 SCC 221

9 (2013) 4 KLT 323

10 2012 (3) MWN (Cr.) 161

11 1981 Cri. LJ 1205

12 1994 53 DLT 389 (FB)

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42. As rightly contended by Mr. Sharath Chandran, it is a misnomer

to say that the "Chapter IV – General exceptions" of the IPC is a defence for

the accused. In the opinion of this Court, every act should pass through the

prism of Chapter IV of the IPC to graduate into an offence. If an act

complained of falls within the net of the exceptions in Chapter IV of the IPC,

it is not an offence at all. Before going into the text of Chapter IV of the IPC,

it may be apposite to quote Lord Macaulay in this regard:

“This Chapter has been framed in order to obviate

the necessity of repeating in every penal clause a

considerable number of limitations. Some limitations

relate only to a single provision, or to a very small class of

provisions…. Every such exception evidently ought to be

appended to the rule which it is intended to modify. But

there are other exceptions which are common to all the

penal clauses of the Code, or to a greater variety of clauses

dispersed over many chapters. It would obviously be

inconvenient to repeat these exceptions several times in

every page. We have, therefore, placed them in a separate

chapter and, we have provided that every definition of an

offence, every penal provision, and every illustration of a

definition or penal provision, shall be construed subject to

the provisions contained in that chapter.”13

(emphasis supplied)

43. To hit the nail hard, Sections 6 and 84 IPC are extracted

hereunder:

Section 6 IPC:

"Throughout this Code every definition of an offence, every

penal provision, and every illustration of every such definition or

13 T.B. Macaulay – The Works of Lord Macaulay: Critical & Historical Essays, Longman's Green, 1885

Edn. P.448

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penal provision shall be understood subject to the exceptions

contained in the Chapter entitled "General Exceptions", though those

exceptions are not repeated in such definition, penal provision, or

illustration.

Illustrations:

(a) The sections, in this Code, which contain definitions of

offences, do not express that a child under seven years of age cannot

commit such offences, but the definitions are to be understood

subject to the general exception which provides that nothing shall be

an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z,

who has committed murder. Here A is not guilty of the offence of

wrongful confinement; for he was bound by law to apprehend Z and

therefore the case falls within the general exception which provides

that “nothing is an offence which is done by a person who is bound

by law to do it”.

Section 84 IPC:

“Act of a person of unsound mind.—Nothing is an offence

which is done by a person who, at the time of doing it, by reason of

unsoundness of mind, is incapable of knowing the nature of the act,

or that he is doing what is either wrong or contrary to law.”

(emphasis supplied)

44. Therefore, it is beyond a pale of doubt that the framers of the

Code had catalogued the exceptions in Chapter IV of the IPC in such a way

that every criminal act passes muster the exceptions contained therein to

metamorphosize into an offence. At this juncture, it is the duty of this Court

to record that the Division Bench of the Kerala High Court, in Shibu (supra),

has also quoted the above passage of Lord Macaulay in support of the view

taken by it.

45. To expatiate further, every Investigating Officer, who is

entrusted with the statutory powers to investigate into an offence, should act

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fairly and justly and in the course of the investigation, if he comes across

materials to show that the case of the accused would fall within the

exceptions in Chapter IV of the IPC, he must be bold enough to file a final

report saying that, though the accused had committed the act in question,

there is no offence made out as his act is excepted under Chapter IV of the

IPC. The Investigating Officer, in Anuj Jermi (supra), had exactly done this

and earned encomiums from this Court.

46. An Investigating Officer's opinion expressed in the final report is

not the end of the matter, because, the judicial officer, on appraisal of the

materials collected and submitted along with the final report by the

Investigating Officer, can either accept it or reject it. Time and again, the

Supreme Court has held that the right to a fair investigation is an essential

concomitant of Article 21 of the Constitution of India. In this connection,

felicitous it is to extract paragraphs 32 and 45 of the judgment of the

Supreme Court in Babubhai vs. State of Gujarat and others

14:

“32. The investigation into a criminal offence must be free from

objectionable features or infirmities which may legitimately lead to a

grievance on the part of the accused that investigation was unfair and

carried out with an ulterior motive. It is also the duty of the investigating

officer to conduct the investigation avoiding any kind of mischief and

harassment to any of the accused. The investigating officer should be fair

14 (2010) 12 SCC 254

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and conscious so as to rule out any possibility of fabrication of evidence

and his impartial conduct must dispel any suspicion as to its genuineness.

The investigating officer “is not merely to bolster up a prosecution case

with such evidence as may enable the court to record a conviction but to

bring out the real unvarnished truth”. (Vide R.P. Kapur v.State of Punjab

[AIR 1960 SC 866 : 1960 Cri LJ 1239],Jamuna Chaudhary v. State of

Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] ,

SCC at p. 780, para 11 and Mahmood v.State of U.P. [(1976) 1 SCC 542 :

1976 SCC (Cri) 72 : AIR 1976 SC 69] )

45. Not only fair trial but fair investigation is also part of

constitutional rights guaranteed under Articles 20 and 21 of the

Constitution of India. Therefore, investigation must be fair, transparent

and judicious as it is the minimum requirement of rule of law. The

investigating agency cannot be permitted to conduct an investigation in a

tainted and biased manner. ..........” (emphasis supplied)

47. Ex consequenti, this Court is in complete agreement with the

summing up words of Mr. Sharath Chandran that what is not an offence does

not require a defence. This Court is further fortified in leaning towards the

contemporary school of thought by the usage of the expression "after hearing

the defence of the accused, but, without questioning the accused" in Section

329(2) Cr.P.C. The legislature was aware that in an enquiry under the second

limb of Section 329(2) Cr.P.C., the trial Court is dealing with the case of a

person who has been found unfit to defend himself. Nevertheless, the

legislature has recognised his legal right to be defended by an advocate who

can effectively articulate the case of the accused and place materials of

sterling quality before the Court to show that even at the time of commission

of the criminal act, the accused was suffering from mental illness of such a

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kind so as to bring him within the exception under Section 84 IPC. The

expression "hear the advocate" should not be given a pedantic and

constricted meaning of merely hearing him without anything more, but,

should be given an expansive meaning to give real life to the expression, lest,

it should become an empty formality. Applying the Heydon's rule

, this

Court is required to bear in mind the mischief that was sought to be remedied

by Section 329(2) Cr.P.C. by ensuring that an accused suffering from a

mental illness is relieved of his misery of being an indefinite undertrial.

48. The enquiry under the second part of Section 329(2) Cr.P.C. will

commence only after the Court gives a finding that the accused is not

mentally fit to face trial. Once such a finding is given, the enquiry under the

second part of Section 329(2) Cr.P.C. shall not be adversarial, but the Court

should invoke the parens patriae principle and give a free hand to both sides

to adduce material to show that the accused was, by reason of unsoundness of

mind, incapable of knowing the nature of the act, or that he was doing what

is either wrong and contrary to law. The doctrine of parens patriae, qua

persons of unsound mind etc., was explained by the Supreme Court in

Charan Lal Sahu vs. Union of India

16 in the following words:

“35. … In the ‘Words and Phrases’ Permanent Edn., Vol. 33

at p. 99, it is stated that parens patriae is the inherent power and

15 (1584) 76 ER 637

16 (1990) 1 SCC 613

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authority of a legislature to provide protection to the person and

property of persons non sui juris, such as minor, insane, and

incompetent persons, but the words parens patriae meaning thereby

‘the father of the country’, were applied originally to the King and

are used to designate the State referring to its sovereign power of

guardianship over persons under disability. Parens

patriae jurisdiction, it has been explained, is the right of the

sovereign and imposes a duty on [the] sovereign, in public interest, to

protect persons under disability who have no rightful protector. The

connotation of the term parens patriae differs from country to

country, for instance, in England it is the King, in America it is the

people, etc. The Government is within its duty to protect and to

control persons under disability.”

49. In view of the decision of Mathew, J. in State of Kerala and

another vs. N.M Thomas & others

, the Court is also a State within the

meaning of Article 1218

. This leeway is essential, because, the accused is not

mentally participating in the enquiry on account of his mental illness and his

advocate is fighting his cause. Even if the advocate fails to persuade the

Court to discharge the accused in the Section 329(2) enquiry, the finding

should not prejudice the accused at a later stage when he becomes mentally

fit to face the trial.

50. This Court called for the records from the trial Court and pored

over them. It is the case of the police that Kaliyappan was taken by his father

Muniyappan and his brother Venkatachalam for treatment, to Varadha

17 (1976) 2 SCC 310

18 See also Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454

Naickar, a native doctor, on 12.05.2006; Varadha Naickar asked Muniyappan

and his three assistants, viz., Settu, Murugesan and Ayyavoo, to hold

Kaliyappan tightly so that he could administer medicine; while they were

holding so, Kaliyappan forcibly wriggled out from their clutches and started

running saying that he needs no treatment; he was pursued by all of them

who were shouting “Catch him, catch him”; seeing Kaliyappan being chased

by some persons who were wanting him to be apprehended, the deceased

Kondaiyan, a good Samaritan, tried to intercept Kaliyappan and lost his life.

The facts being so, there is absolutely no whisper in the final report filed by

the police for what ailment, Kaliyappan was taken to Varadha Naickar. This

Court perused the Section 161(3) Cr.P.C. statements of Kaliyappan's father

Muniyappan, his brother Venkatachalam, Varadha Naickar, Settu,

Murugesan and Ayyavoo and in none of their statements, is there any

mention of the ailment for which Kaliyappan required treatment, except

saying that he would get angry frequently and abuse everyone. It does not

require horse's sense of Sherlock Holmes to ask these witnesses as to what

was Kaliyappan's actual ailment. It requires nothing more than common

sense to expect that these witnesses would have told the police about the

ailment of Kaliyappan, which the police have burked in the final report. The

police statement of one Pachaimuthu shows that at 7.00 a.m. on 13.05.2006,

a man with a bloodstained billhook came to the temple where he was

worshipping and asked for food and water; he gave him water; after drinking,

that person asked for money; when he refused, that person brandished the

billhook and threatened him; later, he was told by the police that the said

person was Kaliyappan. If the view of the orthodox school is adopted and if

the final report and the Section 161(3) Cr.P.C. statements filed by the police

are to be accepted as gospel truth, the very objective of Section 329(2)

Cr.P.C. to provide speedy relief for the mentally ill will stand negated.

Therefore, it is imperative to expand the scope of the enquiry so as to permit

the advocate for the accused to produce materials of sterling quality to show

to the Court that the accused would be entitled to the exception under

Chapter IV of the IPC. Denying this opportunity would result in gross

injustice to the accused and would make Section 329(2) Cr.P.C. meaningless.

51. What should the Court do after it discharges the accused either

under Section 328(3) Cr.P.C. or under Section 329(2) Cr.P.C.? The Court

should proceed under the proviso (a) to Section 330(3) Cr.P.C. by handing

over custody of the accused to someone after getting sufficient security from

him that he will ensure that the accused does not harm himself or anyone.

52. Coming to the contention of Mrs. Kritika Kamal in support of

the orthodox school of thought, in Subramanian Swamy (supra) relied on

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by her, the Supreme Court was not dealing with the exceptions in Chapter IV

of the IPC, but was dealing with the exceptions adumbrated in Section 499

I.P.C. and therefore, the said judgment is clearly distinguishable.

53. It is trite that the burden cast by Section 105 of the Evidence

Act, to bring the case within Chapter IV of the IPC, will rest on the accused

during trial and not any time before it. Since an enquiry under Section

329(2) Cr.P.C. is during trial, the advocate of the accused should be

permitted to discharge the burden by adducing materials to establish that the

case of the accused falls within the General Exceptions in the IPC. This also

reinforces the reasoning of this Court that the expression “hearing the

advocate of the accused” occurring in Section 329(2) Cr.P.C. should be given

an expansive meaning.