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Report No. 41

Chapter XXXIV


34.1. Introductory.-

Chapter XXXIV comprising sections 464 to 475 deals with the case of lunatics accused of crime. The procedure to be followed where the accused is unfit to stand trial due to unsoundness of mind is laid down in sections 464 to 468 and 473, while the case of accused persons who are fit to stand trial but has been insane at the time of committing the crime is dealt with in sections 464 to 471. The remaining two sections 474 and 475 contain provisions common to both cases.

34.2. Sections 464 to 468.-

No changes of substance are required in the first five sections. In section 465, the reference to "commitment" and "jury" will have to be omitted. This section may be revised as follows.-

"465. Procedure in case of person tried by session or High Court being lunatic.- (1) If at the trial of any person before a Court of Session or a High Court, he appears to the Court to be of unsound mind and consequently incapable of making his defence x x x, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if x x x the Court, x x x is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case x x x.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."

34.3. Question of appeal against finding of unfitness to plead considered.-

A question of some importance which arises for consideration in this connection is whether the accused should be given the right to appeal from a finding that he is unfit to stand trial due to insanity. A plea of insanity is usually taken by the accused. But such a plea can be taken by the prosecution also and if the court upholds the plea, the result may be detention of the accused under section 466.. It was suggested before us that in such a case, it is desirable that the accused should be given a right of appeal. It is seen that in England, a recommendation for giving the accused a right of appeal, in such a situation was made by the Criminal Law Revision Committee,1 and has been carried out by the Criminal Procedure (Insanity) Act of 1964.

In our opinion, however, there is no need for such a provision in India. Almost invariably the plea of insanity is taken by the defence and it can have no grievance if its plea is accepted by the Court. In the rare event of such a plea being raised by the prosecution, and accepted by the Court, the general power of revision provided in the Code will be sufficient to safeguard the interest of the accused. We, therefore, do not recommend any provision for appeal in this matter.

1. 3rd Report of the Criminal Law Revision Committe.-"Criminal Procedure (Insanity)" (1963), Cmb. 2149, p. 12, para. 29.

34.4. Sections 469 and 470.-

Section 469 deals with inquiries and trials before Magistrates of an accused person who, though fit to stand trial, is found to have been insane at the time he committed the crime, while section 470 lays down that when such a person is acquitted on the ground of insanity, the finding shall state specifically whether he committed the act alleged. Here also, the question whether the accused should be given a right of appeal against such a finding has to be considered. Where the accused is declared guilty but insane, he cannot appeal against the finding, because he is acquitted. It was suggested to us that the accused should be given a right of appeal against such a finding.

It was stated that there are two special considerations to be borne in mind in this connection. The first is that though the plea of insanity is ordinarily taken by the accused (in which case he would not appeal when the decision is in his favour), it is possible that the prosecution may take the plea, and in such a case, the absence of a right of appeal against the finding of "guilty but insane" may mar his whole life. Secondly, the defence might take not only the plea of insanity, but also a plea of innocence on the merits; and if the plea of insanity succeeds, the accused cannot appeal even if he has been found guilty on the merits.

Our attention was drawn, in this connection, to a number of English decisions1 and it was stated that similar situations can occur in India also. The Criminal Law Revision Committee in England had recommended2 giving the right of appeal to the accused in such cases and the recommendation has been carried out by the Criminal Procedure (Insanity) Act, 1964.

In our opinion, the power of revision given by the Code is wide enough to cover such cases, and a change in the law is not needed. As we have already stated, cases where courts enter a finding of insanity against the accused except on his own plea are too rare to merit any special provision to cover them.

1. Felstead v. R., 1914 AC 534 (HL); R. v. Duke, (1963) 1 QN 120: (1961) 3 All ER 737 (738, 739) (CCA); R. v. Jefferson, (1908) 1 Criminal Appeal Reports 95; R. v. Larkins, (1911) 6 Criminal Appeal Reports 194: 55 SJ 501.

2. Criminal Law Revision Committee, Third Report, "Criminal Procedure (Insanity)", (1963), Cmd. 2149, p. 5, para. 9.

34.5. Section 471.-

Under section 471(1), when a person is acquitted on the ground that he was insane at the time of the commission of the offence and the finding states that the accused did commit the act alleged, the Magistrate or Court shall order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the State Government. Under the proviso to the section the detention of the accused in a lunatic asylum must be in accordance with rules made by the State Government.

An order of the Court delivering the accused to the custody of his relatives appears to be illegal1 as the law stands at present. The contrary view taken in an earlier case,2 was based on the language of the section as it stood then, where the word "kept" was used. The word now used is "detained" and implies curtailment of liberty.3

1. Superintendent and Legal Remembrancer v. Srish Chandra, ILR 56 Cal 308: AIR 1928 Cal 653 (654); Public Prosecutor v. Kandaswami, ILR 1952 Mad 485: AIR 1953 Mad 355.

2. A.B. Mohammad v. Emp., AIR 1922 Mad 54 (55).

3. Public Prosecutor v. Nallyyappa, ILR 1948 Mad 827: AIR 1948 Mad 291.

It has been suggested that if the person found guilty is sane at the time of acquittal, his friends and relatives should be allowed to keep him, after executing a bond with suitable conclusion for keeping the peace for five years thereafter. Delivery of the convicted person to the relatives is a matter which can, at present, be dealt with under section 475 by the State Government only. The Court can, no doubt, state in its report, that it will be safe to release the accused.1 But even if the accused is sane throughout the trial, he cannot be released under section 471.

In England, the Criminal Law Revision Committee2 while observing that the Home Office is in a better position than a Court to investigate questions relating to treatment of the accused, and that in such matters uniformity of practice was desirable, nevertheless recommended that in both cases i.e., when there is a "special verdict" (guilty but insane), and when there is a finding of unfitness to plead, the Court should have a discretion not to make an order for detention if it considers on medical evidence that it is safe for the public to order the immediate release of the accused.

We feel that the recommendations of the English Committee are applicable to Indian conditions also. At least, the mandatory provision in section 471 should be replaced by a provision which would leave some discretion to the Court. The primary object of the detention order under section 471 is rehabilitation of the accused (now acquitted) and to prevent any trouble if he should relapse into insanity.

It cannot be denied that the accused will receive more personal attention and care from his own relatives and friends than in a public lunatic asylum; and where his relatives or friends are ready to look after him and also undertake to ensure that he causes no injury to himself or others, there seems no reason why the accused should not be released to their custody. It can, no doubt, be said in favour of the present provision that if it is found after observation in the hospital that the person concerned is not a danger to others, he would be released under section 475. Even then, there should be no objection to a discretion being given to the Court.

We recommend that su.-section (1) of section 471 be revised and amplified, and su.-section (2), which contains a provision common to sections 466 and 471, be made into a separate section, as follows.-

1. Provisional Government v. Krishna Gopal Maratha, ILR 1945 Nag 551: AIR 1945 Nag 77 (78).

2. Criminal Law Revision Committee, Third Report, "Criminal Procedure (Insanity)", Cmd. 2149, pp. 13, 14, paras. 3.-34.

"471. Person acquitted on such ground to be detained in safe custody.- (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for incapacity found, have constituted an offence.-

(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or

(b) order such person to be delivered to any relative or friend of such person.

(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of su.-section (1), otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912.

(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of su.-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shal.-

(a) be properly taken care of and prevented from doing injury to himself or to any other person; and

(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

(4) The Magistrate or Court shall report to the State Government the action taken under su.-section (1).

471A. Power of State Government to empower officer in charge to discharge.- The State Government may empower the officer in charge of the jail in which a person is confined under the provisions of section 466 or section 471, to discharge all or any of the functions of the Inspector General of Prisons under section 473 or section 474."

No changes are required in the remaining sections of this Chapter.

Code of Criminal Procedure, 1898 Back

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