AMBUJAM v. STATE — 1972 DIGILAW 307 (KER)

Judgment :- 1. A poignant human problem, clumsily bandied by the Court below, disregarding the provisions of the Code of Criminal Procedure has resulted in this revision petition. The 2nd accused, who is the wife of the first accused, in C. C. No. 95 of 1971 on the file of the District Magistrate's Court, Ernakulam, was ordered to be sent to the Mental Hospital, Trichur, for observation for 10. days and report as to whether she is fit to stand trial or not. 2. On a private complaint under S.420 read with S.34 IPC. against five persons, the Magistrate took the case on file on 30 41971 and issued summons to the accused to appear before him on 7 61971. The 2nd accused, as already stated, is the wife of the first accused and accuseds and 4 are their children. The averments in the complaint are that accused 1 and 2 are doing motor transport business and accused 3 to S assist them in their business. The first accused contacted the complainant on 26 61970 and made a false representation that the 2nd accused had an account with the Federal Bank at Ernakulam and issued a cheque to him for Rs. 1000/- and persuaded the complainant to part with Rs. 1000/-, The complaint averred that the accused committed an offence under S.420 IPC. because on verification it was found that the 2nd accused had no funds in the accounts of the Federal Bank, for the cheque to be honoured. 3. The case underwent 26 adjournments before the order in question was passed. On 17 81971 accused 1 to 4 were present and thereafter accused 2 and 3, the wife and daughter of the first accused, were exempted from personal appearance. However, on 31-5-1972 when the case was posted for questioning, all the accused were present and they were questioned. After a few adjournments when the case came for hearing on 21-8-1972 the prosecution submitted that they had no further evidence and the evidence was closed and the case was posted for further questioning to 28-8-1972. On that day, the 5th accused alone was present Others were absent. "No reason shown for the absence of others. No representation also on behalf of other accused. Their bail bonds cancelled. Issue warrants and register M.C. to 8 91972". So ran the order passed by the Court on that day. On that day, the 5th accused alone was present Others were absent. "No reason shown for the absence of others. No representation also on behalf of other accused. Their bail bonds cancelled. Issue warrants and register M.C. to 8 91972". So ran the order passed by the Court on that day. On 8 91972 accused 1, 3 and 4 were arrested and produced before Court. Fresh warrant was ordered to be issued for the arrest of the 2nd accused. On 22 91972 again the 2nd accused was absent. The District Magistrate directed reminder to be issued to the Sub Inspector to execute warrant against the 2nd accused, and, even if insane, to be arrested and produced on 6101972. On that day, the 2nd accused was arrested and produced. The order on that day, which is the subject-matter of revision, reads as follows: "It is reported by the police twice that A. 2 is insane and that she was kept inside a room and that she was uttering abusive words, etc. So she will be sent to the Mental Hospital, Trichur, for observation for 10 days and for report as to whether she is fit to stand trial or not. To 18-10-1972 for report." 4. This revision came up for admission on 12-10-1972. In the criminal miscellaneous petition, I directed the Court below to issue immediate orders to release the petitioner from the Trichur mental hospital on her husband executing a bond for Rs. 500/-with two sureties in the like sum as I was satisfied that a gross injustice was done in the case. I am constrained to observe that the learned District Magistrate failed to look into the relevant provisions of law applicable to such cases. 5. The order in question appears to have been passed on the basis of the report by the police as is evident from the order extracted above. We have to examine whether the course adopted by the Court below is in conformity with law and also whether the case warranted such an extreme step. 6. Chapter XXXIV of, the Code of Criminal Procedure deals with lunatics. S.464 (1) provides as follows: "464. We have to examine whether the course adopted by the Court below is in conformity with law and also whether the case warranted such an extreme step. 6. Chapter XXXIV of, the Code of Criminal Procedure deals with lunatics. S.464 (1) provides as follows: "464. (1) When a Magistrate holding an enquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the District or such other medical officer as the State Government directs, and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing." The above sub-section, therefore, starts by saying that the Magistrate should have reason to believe that the accused is of unsound mind and consequently incapable of making his defence. It makes it mandatory on him to enquire into the fact of such unsoundness and then cause such person to be examined by the Civil Surgeon of the District or such other medical officer as the State Government directs and thereupon has to examine such Surgeon or other officer as a witness and should reduce the examination to writing. The elaborate procedure provided in S.464 (1) Cr. PC. very salutary and humane in its approach, has been laid down to safeguard the interests of a person brought before Court, who is suspected to be insane It is evident that the learned District Magistrate did not conform to the requirements of this section. He resorted to the extreme and unfortunate step of sending this lady to the Mental Hospital merely on the report of the police, perhaps of a constable. It will be a sad day if judicial decisions are to rest on the report of the police officers, however high-placed they are. 7. Sub-section (1A) of S.464 reads as follows: "Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of S.466." S. 466 reads thus: "466. (1) Whenever an accused person is found 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. (1) Whenever an accused person is found 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 safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government: Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912." 8. A mere reading of sub-s. (1-A) of S 464 and the two sub-sections of S.466 would be sufficient to alert any Court about the extreme caution and care that Courts are bound to exercise in dealing with a person who is suspected to be insane. Till the Magistrate records a finding under S.464(1). he has no jurisdiction to order the accused to be detained in safe custody. If there are persons willing to take the accused into safe custody with sufficient security he can release the accused to such person. It is only if the Magistrate is of the opinion that bail should not be taken, or if sufficient security is not given, that he can order the accused to be detained in safe custody in such place and manner as he may think fit. And even here, the Magistrate is directed to report his action to the State Government. Further safeguards have been made by restricting the power of the Magistrate to order detention of the accused only in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912. And even here, the Magistrate is directed to report his action to the State Government. Further safeguards have been made by restricting the power of the Magistrate to order detention of the accused only in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912. Under S.464, 465 and 466, the Magistrate has to postpone the enquiry or trial on his being satisfied that the accused cannot properly defend his or her case. Thereafter, it is provided for the resumption of the enquiry or trial. 9.In dealing with S.465 C. P.C., which relates to an accused committed for trial before a Court of Sessions or High Court, the Supreme Court has observed in Vivian Rodrick v. State of West Bengal ((1970)1 S.C.C.(Crl) 33 at p.40 as follows: "To adopt the procedure indicated in S.465, it is necessary that the person committed for trial before a Court of Sessions or a High Court must appear to the Court to be of unsound mind and incapable of making his defence. The emphasis is: (1) that the person must appear to the Court to be of unsound mind; and (2) in consequence of such unsound mind he must be incapable of making his defence. There must be something in the demeanour of the accused who is brought up for trial which would raise a doubt in the mind of the Court that he is of unsound mind and consequently incapable of making his defence. If such a doubt had been raised in the mind of the Court, it was obligatory on I the Court, or the jury, in the first instance, to try the fact of such unsoundness of mind and incapacity of the accused. If the jury, or the Court, as the case may be, is satisfied of the said fact, the judge shall record a finding to that effect and shall postpone further proceedings in the case. Without attempting to be exhaustive, we may indicate that a doubt may arise in the mind of the Court because of the manner in which an accused behaves or answers questions." 10. Again in Jai Shanker v. State of Himachal Pradesh, (1972) II SCWR. 580 at p. 586), the application of S.464 Cr. P. C. has been discussed. Without attempting to be exhaustive, we may indicate that a doubt may arise in the mind of the Court because of the manner in which an accused behaves or answers questions." 10. Again in Jai Shanker v. State of Himachal Pradesh, (1972) II SCWR. 580 at p. 586), the application of S.464 Cr. P. C. has been discussed. The Supreme Court observed: "The situation arising in this case is governed by S.464 of the Code which lays down the procedure which a Magistrate is enjoined upon to follow when an accused person alleges that he is suffering from such mental infirmity as to render him incapable of making his defence. It is clear from the mandatory language of the section that the first thing that the Magistrate has to do is to decide, when an accused person is brought before him who is suspected or alleged to be a person of unsound mind and before he proceeds with the inquiry, whether such person appears to him to be of unsound mind. The words "reason to believe" indicate that when an accused person is presented before a Magistrate for enquiry, who it is alleged, is suffering from unsoundness of mind, the magistrate has, on such materials, as are brought before him to inquire before he proceeds with the inquiry whether there are reasons to believe that the accused before him is suffering from any such infirmity. The next step is that if he has such reasons to believe, he is to institute an inquiry into the fact of unsoundness of mind and cause him to be examined by the civil surgeon or such other medical officer as the State Government directs. Therefore when a question is raised as to the unsoundness of mind of an accused person, the magistrate is bound to inquire before be proceeds with the inquiry before him whether the accused is or is not incapacitated by the unsoundness of mind from making his defence. Such a proviso clearly is in consonance with the principles of fair administration of justice." The principle underlying S.464 and allied sections has been clearly set forth in the above two decisions. The provisions are mandatory and can never be overlooked by a Court of law in dealing with accused who are alleged to be lunatics. Such a proviso clearly is in consonance with the principles of fair administration of justice." The principle underlying S.464 and allied sections has been clearly set forth in the above two decisions. The provisions are mandatory and can never be overlooked by a Court of law in dealing with accused who are alleged to be lunatics. The Court below in this case has not recorded a finding that the accused appeared to be insane. All that he has observed is that the police has reported twice that she is insane. Her husband, who has been looking after her, was willing to take her into his care and protection and to treat her. One does'nt know whether she was really insane or was mentally deranged or whether she had only a nervous trouble as is seen from the revision petition before me. The Court below has completely disregarded the feelings of her husband and the impact of his action on her children. Having laid down an elaborate procedure to deal with cases of this nature, they have not been looked into. Perhaps, the prosecution did not bring these sections to the notice of the Court. It may also be that the learned District Magistrate did not take pains to consider what his jurisdiction was. But the result has been painful. A lady has been callously sent to the Mental hospital for no fault of hers and on account of absence of diligence on the part of others. Mental hospitals are not always welcome alternatives to one's own house. 11. The only ground on which the Magistrate felt that the 2nd accused is insane is that she was kept inside a room and that she was uttering abusive words. On looks in vain in the order of the Magistrate of any indication of the conduct or demeanour of the 2nd accused when she was brought before Court. If she had conducted herself in an abnormal or indecorous manner in Court or had either used obscene words in Court one would have expected the Magistrate to make a passing reference about such conduct. The absence of any reference to her conduct in Court only shows that she had conducted herself in a proper manner and did not give room to the Magistrate to complain. 12. All this has happened on a private complaint under S.420, IPC. The absence of any reference to her conduct in Court only shows that she had conducted herself in a proper manner and did not give room to the Magistrate to complain. 12. All this has happened on a private complaint under S.420, IPC. The Court had granted exemption from personal appearance to her and her daughter throughout the trial and she was asked to appear only for questioning. Accused 1 to 5 had a common defence in the case. The other accused persons were present in Court. Under these circumstances one fails to see whether this extreme step was necessary in the case. 13. The inherent dignity of human person has been recognised by our Constitution and by the United Nations Charter in the Universal Declaration of Human Rights. In applying the municipal law to a given situation, it is preeminently necessary to keep in mind this aspect of the question, Art.5 of the Universal Declaration of Human Rights reads as follows: "No one shall be subjected to torture or to cruel, in human or degrading treatment or punishment." Article 12 reads: 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." Article 25 (2) enjoins that "motherhood and childhood are entitled to special care and assistance". These sacred principles are of universal application and especially to our country, which is a member of the United Nations Organisation and which by treaty is bound by the Charter. Our Constitution, be it said to its glory, has also embodied "in its various articles these basic principles, to preserve and maintain the dignity of man. It has clearly laid down that the liberty of an individual cannot be destroyed or taken away except in accordance with law and that the law should be in conformity with the constitutional guarantees regarding human freedom. Ours is a civilized country with a civilized jurisprudence. Ours is a country which has given extreme respect for womanhood. Therefore, in such cases the Courts should be more human in their approach. The order sought to be revised is clearly without jurisdiction and against law. In the result, the order of the Court below is set aside and the criminal revision petition is allowed.