Report No. 154
Chapter XVI
Enquiry and Trial of Persons of Unsound Mind
1. It has been recognized that the primary objective of the law of criminal procedure is to ensure that accused persons are granted a fair trial. The right to be informed of the accusation and an opportunity to prefer defence is granted to the accused by the Code of Criminal Procedure (Cr. P.C.): whilst the right to consult counsel is conferred by the Constitution.
2. An accused who is of unsound mind at the time of the inquiry or trial may not comprehend the charges leveled against him and may be unabled to explain the alleged criminal conduct. The accused being the alleged doer of the act possesses the best knowledge of his own activities in relation to the incriminating circumstances. If due to unsoundness of mind he is unable to provide this vital information to his counsel, his defence cannot be conducted to his, best advantage.
If the inquiry or trial is proceeded with in his absence, the accused cannot impart instructions for cross-examination nor in the course of his examination under section 342 of the Code explain the circumstances appearing against him. Due to these dysfunctional consequences provisions have been incorporated in the Cr. P.C. which lay down that the inquiry proceedings or trial of a person, who is incapable of defending himself due to unsoundness of mind, may be postponed. The motivation for including these provisions in the Cr. P.C. is to ensure that an accused incapacitated due to unsoundness of mind is not denied his basic human right to a fair trial.
"1. This principle is embodied in section 328 which is as follows:
Section 328(1): When a Magistrate holding an inquiry has reason to 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 enquire 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 therefore, shall examine such surgeon or other officer as a witness and shall reduce the examination to writing.
(2)..........
(3) If such Magistrate is of opinion that the person referred to in sub-section (1) is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case."
4. Section 329 deals with the procedure of trial of person of unsound mind by Magistrate or Court of Session. It runs as:
"Section 329(1): If at the trial of any person before a Magistrate or a Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity and, if the Magistrate or Court, after considering such medical or other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
(2) The trial of the fact of the unsoundness of mind incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court."
5. Once an under-trial is found incapable of standing trail due to unsoundness of mind the trial has to be postponed. During the interregnum of the postponement and resumption of the trial, the under-trial can be released on surety of safe conduct. However, if the case is not fit for the grant of bail or if no surety for the release of the accused is offered, the accused can be detained in safe custody. The sate custody can he that of a jail or a mental hospital.
6. The law grants no entitlement of treatment to the insane under-trial. A guarantee of safe conduct and not treatment is sought from surety seeking release of the under-trial. Without a right to treatment, detention in jail will only be custodial guarding against the alleged dangerous propensities of the accused but providing no facilities for alleviating the incapacitating condition of the accused.
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, it 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 if insane under-trials 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 under-trial 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 under-trial 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.
9. Article 14 of the Indian Constitution prohibits both different treatment of similar groups and similar treatment of different groups. Sections 328 and 329 authorise the postponement of the criminal trial of all persons of unsound mind who are incapable of defending themselves. This postponement whilst benefiting persons of unsound mind who are suffering from a treatable condition, could lead to lifelong incarceration of the incurable mentally1 ill and mentally retarded. Both groups are incapable of regaining capacity, hence postponement does not promote fair trial for them, rather it operates as punitive device. This similar treatment of the incurables and the curables violates the equality provision.
1. AIR 1983 SC 339; see also "Acquitted after 32 Years" in Indian Express (Delhi Edn.), May 1, 1996 (Sixty five year old A.N. Ghosh was arrested in 1964 on charges of murdering his brother. A city 'court in Calcutta found him to be insane and asked the jail authorities to keep him for treatment. Though Ghosh regained his mental balance after sometime, he continued to languish behind the bars awaiting trial. He was released from the Presidency jail in Calcutta after his case was taken by a local NGO, Antara').
10. Section 330 provides for release of persons of unsound mind pending inquiry or trial. It reads as:
"Section 330(1): Whenever a person is found, under section 328, or section 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.
(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 sale 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)."
11. Recognition to the therapeutic rights of insane under-trials is also by mandated the right of speedy trial guaranteed under Article 21. The provisions in the Code which accord recognition to the right of speedy trial do not apply to the insane under-trial. Since an insane under-trial is treated differently from a sane under-trial, it can be logically contended that the manner of their disposition should be suited to their varied needs. A sane under-trial who is to be released on bail is kept in jail in order to prevent him from fleeing or tampering with the investigation procedure.
An insane under-trial not released on surety can also be confined in jail. Confinement in jail can be only protective custody, and protective custody is not what the insane detenu needs for early resumption of trial. The right of speedy trial as extended to the insane under-trial requires that the detenu should be confined in conditions which would alleviate the incapacity and aid early resumption of trial. The speedy trial rights of insane under-trials are infringed not only by their confinement in jails but also because no time limit is provided for keeping the trial in abeyance and the accused in detention.
In Hussainara Khatoon1the Supreme Court whilst enunciating the right to speedy trial ordered the release of those under-trials whose trial had not commenced even after the period specified for such commencement in the Code has expired. The rationale of specifying a time limit within which a trial should begin is to save the accused from the disadvantages occasioned by stale or tampered evidence and frail memory of witnesses.
1. Hussainara Khatoon (in re:), (1980) 1 SCC 91.
12. The trial of a person of unsound mind who is incapable of defending himself is postponed to promote fair trial. If this post elopement operates for periods as long as 10 years then even when the accused regains sanity he may still be incapable of 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 under-trial 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 under-trials.
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 thatpersonal 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 institutionalize these persons.
16. We accordingly suggest the following amendments to sections 328, 329 and 330 in respect of the pre-inquiry and pre-trial proceedings.
16.1 After section 328(1) a new sub-section (1A) may be inserted on the following lines:
"Section 328(1A): That if the civil surgeon finds the accused is of unsound mind, the accused shall be referred to a psychiatrist or clinical psychologist for care, treatment and for prognosis of the condition. The psychiatrist or clinical psychologist shall also inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation."
16.2. Further, for the existing sub-section (3) of section 328 the following sub-section (3) be substituted:
"Section 328(3): If such magistrate is informed that the person referred 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.
On such a finding of unsoundness of mind of the accused arrived by the Magistrate, he shall examine the record of evidence produced by the prosecution and after hearing the lawyer 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 the accused in the manner provided under the proposed section 330(3):
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 the proposed section 330(3)."
16.3. A new sub-section (4) to section 328 be inserted as follows:
"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 the proposed section 330(3)."
16.4. Section 329(1) shall be amended as follows:
"Section 329(1): If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall refer such person to a psychiatrist or clinical psychologist for care, treatment and for prognosis of the condition. The psychiatrist or clinical psychologist shall also inform the Magistrate or Court whether the accused is suffering from unsoundness of mind or mental retardation."
16.5. In place of existing sub-section (2) of section 329, the following sub-section (2) shall be inserted:
"Section 329(2): If such Magistrate or Court is informed that the person referred to in sub-section (1) 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.
On such a finding of unsoundness of mind of the accused arrived at by the Magistrate or Court, he or it shall examine the record of evidence produced by the prosecution and after hearing the lawyer of the accused but without questioning the accused, if he or it 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 the accused in the manner provided under the proposed section 330(3):
Provided that if the Magistrate or Court 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 or it 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."
A new sub-section (3) of section 329 shall be inserted in the following manner:
"Section 329(3): If the Magistrate or the Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with the proposed section 330(3)."
16.6. The existing section 330(1) shall be amended as follows:
"Section 330(1): Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the magistrate or court, as the case may be, whether the case is one in which bail may be taken or not, order release on bail provided the accused is suffering from unsoundness of mind or mental retardation which does not mandate inpatient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person."
16.7. The existing section 330(2) shall be amended as follows :
"Section 330(2): If the case is one in which, in the opinion of the magistrate or court, as the case may be, bail shall not be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept, in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government."
16.8. A new sub-section (3), be inserted in section 330:
"Section 330(3): Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of act committed and the extent of unsoundness of mind or retardation further determine if the release of the accused can be ordered.
(i) If on the basis of medical and other specialist opinion the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under sections 328(3) and (4) and 329(2) and (3), such release may be ordered if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person.
(ii) If the Magistrate or Court is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training."
17. Coming to the proceedings after the person concerned has ceased to be of unsound mind and on the consequent resumption of inquiry or trial, the relevant section to be noted are sections 331 to 339 of the Code.
18. Acceptance of the defence of insanity results in acquittal but not discharge. A court acquitting on the ground of insanity is required to make an express finding whether the accused had committed the act. If the accused had committed the alleged act, the Magistrate or Court is required to either make an order for the accused to be detained in a place of safe custody or to be discharged on surety of safe conduct to a relative or friend.
The place of safe custody can either to a jail on a mental hospital, Commitment to a mental hospital is to be ordered according to rules made under the Lunacy Act. From first of April, 1993 the rules made under the Mental Health Act, 1987 would be applicable because the Lunacy Act, 1912 has been repealed by the Mental Health Act, 1987. No order for delivery of the accused to relative or friend can be made, except on the application of such relative giving security to the satisfaction of the court that the accused shall be prevented from causing injury to others or to himself.1
1. Abdul Latif v. State of Assam, 1981 Cr 14 1205.
19. Sections 335 to 339 deal with the accused acquitted after the completion of the trail held in accordance with sections 331 to 334. These sections may suitably be modified to provide better treatment and rehabilitation of such persons on the lines indicated in the proposed section 330(3) and the provisions of the Mental Health Act, 1987. All references to the Indian Lunacy Act, 1912 in the Code shall be deleted.
