JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant – original accused, through his brother, calls in question the legality and validity of the order dated 7th May 2016 passed by the 12th (Adhoc) Additional Sessions Judge, Rajkot Exhibit: 12 in the Sessions Case No.268 of 2014. 2. It all started with an application under Sections 328 and 329 of the Code of Criminal Procedure, 1973 filed by the elder brother and natural guardian of the accused stating that the accused namely, Sunil Tejbahadur Singh was of unsound mind and thus incapable of making his defence. 3. It appears from the materials on record that the accused namely, Sunil Tejbahadur Singh is facing trial for the offence punishable under Sections 302 and 324 of the Indian Penal Code. On 21st November 2014, the Additional Sessions Judge, Rajkot framed charge at Exhibit: 7 against the accused for the offence of murder. 4. It appears that on 13th July 2014, at about 1900 hours, the accused is alleged to have inflicted injuries on the body of two persons namely, Ravatbhai @ Rajubhai and Dashrathsingh Fatehsingh Jadeja. The injuries inflicted on the body of Dashrathsingh Fatehsingh Jadeja proved to be fatal. 5. The brother of the accused namely, Anil Singh preferred an application Exhibit: 12 before the trial Court stating that his brother i.e. the accused is of unsound mind and is incapable of making his defence. In the application Exhibit: 12, it has been stated that the accused is undergoing treatment as regards the mental ailment since 2012. It is further stated that since the accused is incapable of making his defence, the trial be stayed. 6. The trial Court adjudicated the application Exhibit: 12 and by the impugned order, rejected the same. While rejecting the application Exhibit: 12, the trial Court observed as under: “(3) On perusing case papers, I do not find accused to be of unsound mind and consequently incapable of making his defence, because, he is able to put his signature on relevant papers steadily and similarly at every time. It is required to be noted that he did similar signature on vakilpatra and on the plea to charge at two different times. It is required to be noted that he did similar signature on vakilpatra and on the plea to charge at two different times. (4) It is also required to be stated that when accused is in prison, it is obligation upon medical officer of prison to inspect, examine the health – physical and mental of prisoners and in case of sickness to report it to the jail superintendent after taking down such data in register of sick as per Jail Manual, in present case, there is not such report from the jail authority stating that the accused under trial prisoner is unsound of mind or he is mentally sick. Even the Rajkot Jail Superintendent has no occasion to submit abstracts of medical officer concerned, health register, register of sick pertaining to the accused to the Court. Had the accused been really mentally sick, there would have been report from Superintendent of Jail as contemplated in Jail Manual. (5) In above circumstances, the accused does not appear to be of unsound mind to me. Section 329 contemplates two stages of procedure. The first stage laid down that two stages of the judge that the accused placed on his trial was of unsound mind and incapable of making his defence and the next stage that has to follow when it appears to the judge that accused was of unsound mind and consequently incapable of making his defence, is that the fact of such unsoundness of mind and incapacity has to be inquired into on the material placed before the court. If the judge entertains a doubt about sanity, it will be for the judge to proceed for second stage. (6) If judge is not satisfied, that is to say, if it does not appear to judge that the accused is of unsound mind, there is no necessary to proceed for second stage. In view of above, discussion, I pass the following order with note that the learned advocate for the accused has not even signed this application. ORDER This application is hereby rejected. Office is directed to send copy of this order to Superintendent, Central Jail, Rajkot for his notice and perusal as applicant is under prisoner under his custody.” 7. Being dissatisfied with the order passed by the trial Court, this application has been filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 8. Office is directed to send copy of this order to Superintendent, Central Jail, Rajkot for his notice and perusal as applicant is under prisoner under his custody.” 7. Being dissatisfied with the order passed by the trial Court, this application has been filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 8. Mr. Chandrani, the learned counsel appearing for the applicant accused vehemently submitted that the trial Court committed a serious error in passing the impugned order. He would submit that the accused was examined by a Resident Medical Officer as well as a Psychiatrist at the Pandit Dindayal Upadhyay Medical College and Hospital at Rajkot. A medical certificate has been issued by the hospital stating that the accused is suffering from an unspecified psychiatric disorder. It is further stated in the certificate that the patient requires regular treatment and followup at the jail O.P.D. at Central Jail, Rajkot. 9. The learned counsel would submit that in the impugned order, the trial Court has failed to consider the medical certificate issued by the Civil Hospital at Rajkot. He would submit that it was incumbent upon the trial Court to try the fact of unsoundness and incapacity of the accused to make his defence by affording the parties an opportunity to lead the medical and other evidence. The learned counsel would submit that the trial Court should not have proceeded to frame the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code as the accused was not in a fit state of mind and was unable to understand the purport of the same. He submits that the act of a person of unsound mind is not an offence being incapable of knowing the nature of the act. The learned counsel pointed out that having regard to the mental condition of the accused, the accused in the past was ordered to be released on temporary bail. The accused surrendered in time and later once again prayed for release on temporary bail, but the prayer was declined. 10. The learned counsel, in support of his submissions, has placed reliance on the following decision: (i) Ratan Lal Vs. The accused surrendered in time and later once again prayed for release on temporary bail, but the prayer was declined. 10. The learned counsel, in support of his submissions, has placed reliance on the following decision: (i) Ratan Lal Vs. State of M.P. [ AIR 1971 SC 778 ] (ii) Bolabhai Hirabhai vs. State of Gujarat [2001(2) GLH 608] (iii) Ashaben Naileshbhai Shah vs. State of Gujarat [ 2010(2) GLH 731 ] (iv) Bhauli Mahto vs. State of Bihar [2013 Lawsuit (Pat) 90] 11. In such circumstances referred to above, Mr. Chandrani, the learned counsel pray that there being merit in this application, the same may be allowed and the impugned order be quashed. He prays that the application Exhibit: 12 be allowed by this Court. 12. On the other hand, this application has been vehemently opposed by Ms. Nisha Thakore, the learned Additional Public Prosecutor appearing for the State of Gujarat. 13. The learned A.P.P. submits that no error, not to speak of any error of law could be said to have been committed by the trial Court in passing the impugned order. Ms. Thakore submits that the trial Court has recorded a categorical finding that the accused does not appear to be of unsound mind and is very much capable of making his defence. According to the learned A.P.P., such finding of fact may not be disturbed in the absence of any other cogent materials on record to even prima facie suggest that the accused is of unsound mind and is incapable of making his defence. 14. Ms. Thakore, the learned A.P.P. submits that it is not even the case of the Jail Superintendent that the accused is of unsound mind and requires treatment for the same. 15. In such circumstances referred to above, the learned A.P.P. submits that there being no merit in this application, the same be rejected. 16. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the trial Court committed any error in passing the impugned order. 17. Before adverting to the rival submissions canvassed on either sides, the provisions of Sections 328 and 329 of the Code of Criminal Procedure, 1973 should be looked into. 18. Section 328 of the Cr.P.C. reads as under: “328. 17. Before adverting to the rival submissions canvassed on either sides, the provisions of Sections 328 and 329 of the Code of Criminal Procedure, 1973 should be looked into. 18. Section 328 of the Cr.P.C. reads as under: “328. Procedure in case of accused being lunatic (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 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 psychiatric 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 subsection (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, in stead 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. (4) If such Magistrate is informed that the person referred to in subsection (7A) 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.]” 19. Section 329 of the Cr.P.C. reads as under: “329. Procedure in case of person of unsound mind tried before Court (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, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and 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. [(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: Provided that if the accused is aggrieved by the information given by the psychiatric 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) If such Magistrate or Court is informed that the person referred to in subsection (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 case 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. (3) If the Magistrate or 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 section 330.]” 20. Section 330 of the Cr.P.C. provides for the release of person of unsound mind pending investigation or trial. 21. Section 330 of the Cr.P.C. reads as under: “[330. Section 330 of the Cr.P.C. provides for the release of person of unsound mind pending investigation or trial. 21. Section 330 of the Cr.P.C. reads as under: “[330. Release of person of unsound mind pending investigation or trial (1) Whenever a person if 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, whether the case is one in which bail may be taken or not, order release of such person on bail: Provided that 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 outpatient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person. (2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot 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: 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 Mental Health Act, 1987. (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 the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered: Provided that(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under section 328 or section 329, 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; (b) if the Magistrate or Court, as the case may be, 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.]” 22. The chapter XXV begins with Section 328 of the Cr.P.C., which provides the procedure for enquiry by a Magistrate in regard to the fact of unsoundness of mind. A Magistrate holding an enquiry, if has reason to believe that the person before him is of unsound mind and consequently incapable of making his defence, then he is enjoined upon to enquire into such unsoundness of mind and shall cause such person to be examined by a Civil Surgeon of the District or such other medical officer as the State Government may direct. Such Civil Surgeon or Medical Officer is thereafter to be examined as a witness. Pending this enquiry, the Magistrate may deal with such a person in accordance with the provisions of Section 330 of the Cr.P.C, which talks of release of lunatic pending investigation or trial. If the Magistrate is of the opinion that the person is of unsound mind, he is to record his finding to that effect and then postpone the proceedings in the case. This Section has been so amended from the old Section so as to provide for the procedure to be followed in any inquiry where person against whom inquiry is being held appears to be of unsound mind. 23. This Section has been so amended from the old Section so as to provide for the procedure to be followed in any inquiry where person against whom inquiry is being held appears to be of unsound mind. 23. Section 329 of the Cr.P.C, on the other hand, provides for a procedure in case of a person of unsound mind tried before the Court. Section makes it clear that in a trial before the Magistrate or Court of Sessions, if the accused appears to be of unsound mind and consequently incapable of making his defence, then the Court shall, in the first instance, try the fact of such unsoundness of mind and incapacity and if satisfied in this regard, shall record a finding to that effect and shall postpone the further proceedings. This Section is similar to Section 328 of the Cr.P.C., with this difference that the latter relates to an enquiry before a Magistrate, while this Section relates to the trial before the Magistrate or Court of Sessions. However, both the Sections relate to unsoundness of mind at the time of inquiry or trial and not at the time of commission of offence. The distinction between incapacity at the time of doing the act charged and incapacity at the time of trial is, therefore, appreciable. The incapacity at the time of the commission of offence is dealt under Section 84 of the I.P.C. Section 84 of the I.P.C. is a substantive provision which excuses the offence whereas Sections 328 and 329 of the Cr.P.C. affects the procedure and postpone the trial. The condition essential for applicability of the Sections is that it must appear to the Court that the accused brought before it is of unsound mind. If it does so appear, then the fact has to be tried and decided first before calling upon the accused to stand trial for the offence charged. The word `appears' imports lessor degree of probability than proof. These provisions are mandatory and ought to be strictly complied with. The issue of insanity is to be tried only where the accused appears to be incapable of making his defence due to mental infirmity. The Magistrate is not to order inquiry on mere defence of insanity, he must have `reasons to believe' that the accused is of unsound mind. A Magistrate cannot act on his own opinion. The issue of insanity is to be tried only where the accused appears to be incapable of making his defence due to mental infirmity. The Magistrate is not to order inquiry on mere defence of insanity, he must have `reasons to believe' that the accused is of unsound mind. A Magistrate cannot act on his own opinion. He must have before him a statement of medical officer, who must be examined. Where the Court decides that the accused is of unsound mind and consequently incapable of making his defence, the trial is to be postponed. As provided in Section 330 of the Cr.P.C., such a person may be released 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 or for his appearance when required before the Magistrate or the Court. The Court or the Magistrate is also entitled to direct the accused to be detained in safe custody in such a place and manner as it may think fit if it is of the view that the bail should not be taken or sufficient security is not given. Section 331 of the Cr.P.C thereafter talks of resumption of enquiry or trial, when the concerned persons ceases to be of unsound mind. Section 332 of the Cr.P.C prescribes a procedure to proceed with the trial or enquiry as the case may be. 24. Since the requirement under these Sections is mandatory and the Court is to try the fact of unsoundness of mind and capacity of the accused at the first instance, the commencement of trial without recording the medical evidence or satisfying himself or recording a finding on the material placed before him, will vitiate the trial. Needless to mention that the conclusion of the Court that the person is or is not of unsound mind has to be on the materials placed on record and any decision without holding the enquiry or without recording reasons would be unsustainable. When the medical report is to the effect that the accused is of unsound mind, it would be reasonable to infer that he is incapable of making his defence. In such circumstances, the Court would almost be bound to afford the protection to him as he is entitled to under the law, being of unsound mind at the time of trial. 25. In such circumstances, the Court would almost be bound to afford the protection to him as he is entitled to under the law, being of unsound mind at the time of trial. 25. Unlike Sections 328 and 329 of the Cr.P.C., the Section 333 of the Cr.P.C, prescribe procedure, when the accused person appears to be of sound mind at the time of enquiry and trial but the Court finds that he was incapable of knowing the nature of the act or that it was wrong or contrary to law at the time when he committed the act by reasons of unsoundness of mind. Thus, Sections 333 of the Cr.P.C and 334 of the Cr.P.C. regulates the procedure, when the accused person is found capable of making a defence but pleads that the act was committed at the time when he, on account of reasons of unsoundness of mind, was incapable of knowing the nature thereof. In such a case, he is required to be acquitted on the ground of unsoundness of mind. This is so provided by Section 334 of the Cr.P.C. At the time of recording this finding, the Court is also to record a finding and state specifically whether the accused person had committed the act or not. Section 333, when read with Section 334 of the Cr.P.C, would provide for acquittal of an accused where the Court is satisfied from the evidence given before it that the accused was, at the time of commission of crime by reasons of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law. While acquitting the accused on the ground of he being insane, the Court is to give a specific finding whether the accused had committed the act charged. A provision has also been made for detaining a person acquitted on such grounds in safe custody in the form of Section 335 of the Cr.P.C. 26. As would be borne out from a bare perusal of the provisions reproduced above, before a Magistrate or Court proceeds to "try" to the fact of unsoundness and incapacity it must "appear" to the Magistrate or Court that the person is of unsound mind and consequently incapable of making his defence. As would be borne out from a bare perusal of the provisions reproduced above, before a Magistrate or Court proceeds to "try" to the fact of unsoundness and incapacity it must "appear" to the Magistrate or Court that the person is of unsound mind and consequently incapable of making his defence. The word "appears" surely imports a lesser degree of probability than "proof' but then this would not mean that the Magistrate or Court must proceed to "try" the question on mere asking. There must be something either in the form of medical record or other material to raise a reasonable doubt in the mind of the Magistrate or Court that the accused is of unsound mind. Even the demeanour of the accused may sufficiently lead to such a doubt. It is only on the crossing of this hurdle that it becomes obligatory on the Magistrate or Court to "try" the fact of such unsoundness of mind and incapacity of the accused. 27. I am not convinced with the manner in which the trial Court dealt with the application Exhibit: 12 for more than one reason. First, it is not clear from the impugned order whether the trial Court had the benefit of looking into the medical certificate dated 4th September 2015 issued by the Pandit Dindayal Upadhyay Medical College and Hospital, Rajkot duly signed by the three doctors, which includes a Psychiatrist. The medical certificate reads as under: “No.C6, 42915, Date: 12.09.15 Court / Police request Letter no. Date 4.9.2015 Letter from Central Jail, Tabibi Adhikari, Rajkot. Patient identity verified by PC JM DHAGAL B No.1142 Certificate This is to certify that Shri / Smt. / Ku. Sunilbhai Tejabahadur has been examined by Dr. Kalpesh Chandrani vide / indoor Case No.344920 dated 12.9.205. Patient is accompanied by PC JM Dhagal B. No.1142 By informant: BROTHER By Patient • Not interacting properly • Lost in thoughts • Remain silent most of the time • • • NONE • • • • Examination findings: O/E Not maintaining Eye to Eye contact Withdrawn behaviour. Power of speech : average self care Dignosis: UNSPECIFIED PSYCHOTIC DISORDER Recommendation: PATIENT REQUIRES REGULAR TREATMENT AND FOLLOW UP AT JAIL OPD, AT CENTRAL JAIL RAJKOT. Sd/ Sd/ Signature/Seal of Psychiatrist Signature/Seal of RMO/Superintendent Resident Medical officerCl-1 P.D.U. GONDAL, RAJKOT. True copy sd/MEDICAL OFFICER (illegible)” 28. Power of speech : average self care Dignosis: UNSPECIFIED PSYCHOTIC DISORDER Recommendation: PATIENT REQUIRES REGULAR TREATMENT AND FOLLOW UP AT JAIL OPD, AT CENTRAL JAIL RAJKOT. Sd/ Sd/ Signature/Seal of Psychiatrist Signature/Seal of RMO/Superintendent Resident Medical officerCl-1 P.D.U. GONDAL, RAJKOT. True copy sd/MEDICAL OFFICER (illegible)” 28. Thus, it appears that from the Central Jail, Rajkot, the accused was taken to the Civil Hospital by a police constable, namely, J.M. Dhagal Buckle No.1142 and the accused was examined. The medical certificate makes it very clear that the accused is suffering from an unspecified psychotic disorder. The doctors have also recommended for regular treatment and followup at the jail O.P.D. 29. In fact, it was the duty of the trial Court to call for the report from the Jail Superintendent of the Central Jail, Rajkot in this regard. It appears that either the medical certificate was not shown to the trial Court or the same has not been taken into consideration. This has rendered the impugned order vulnerable. I am of the view that the matter should be remanded to the trial Court for fresh consideration of the application Exhibit: 12. Since the medical certificate on record is of 4th September 2015, I am of the view that the accused should be once again examined by the Civil Hospital at Rajkot. He should be examined by a team of doctors which should include the Head of Psychiatric Department. The Jail Superintendent, Rajkot shall obtain a fresh certificate from the hospital and the same shall be produced before the trial Court for its consideration. 30. The trial Court shall take into consideration the medical certificate dated 4th September 2015 as well as the fresh certificate that would be produced by the Jail Superintendent. The trial Court shall also call for the report of the Jail Superintendent as regards the overall conduct and behaviour of the accused. The other medical cases papers from the jail O.P.D. shall also be called for and looked into. 31. After taking into consideration the necessary materials, the trial Court shall decide the application Exhibit: 12 a fresh keeping in mind the position of law explained by this Court above. 32. For the foregoing reasons, this application is partly allowed. The impugned order passed by the 12th (Adhoc) Additional Sessions Judge, Rajkot below Exhibit: 12 is hereby quashed and set aside. 32. For the foregoing reasons, this application is partly allowed. The impugned order passed by the 12th (Adhoc) Additional Sessions Judge, Rajkot below Exhibit: 12 is hereby quashed and set aside. The matter is remitted to the Court of Sessions for fresh consideration of the application Exhibit: 12. 33. At this stage, it is necessary for me to clarify as regards the contention of the learned counsel appearing for the accused with respect to Section 84 of the Indian Penal Code. I fail to understand what has Section 84 of the Indian Penal Code to do with the issue which has been raised in this application. 34. Section 84, Indian Penal Code, one of the provisions contained in Chapter IV of the Indian Penal Code, which deals with the “General Exceptions” provides as under: “84. 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.” 35. Section 105, Evidence Act, 1872, which deals with the burden of proving the existence of circumstances bringing the case within any of the exceptions specified in the Indian Penal Code, provides: “105. Burden of proving that case of accused conies within exceptions When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, 1860 (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any Jaw defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.” 36. There are four kinds of persons who may be said to be non compos mentis (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. The burden of proof is on A.” 36. There are four kinds of persons who may be said to be non compos mentis (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. An idiot is one who is of nonsane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn., pp. 3132; Russell on Crimes and Misdemeanors; 12th Edn., Vol.1, p. 105; 1 Hale's Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12th Edn., Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. 37. Section 84 of the I.P.C. embodies the fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 38. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place . The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place . In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties or rationcination are sufficiently dim to apprehended what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. [See: Harisingh vs. State of Madhya Pradesh, 2008 (16) SCC 109 ] 39. The Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat [ AIR 1964 SC 1563 ] held as under: “The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.” 40. Dealing with the passage quoted above, the Supreme Court in Bhikari vs. the State of Uttar Pradesh [ AIR 1966 SC 1 ] observed as under: “This passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act.” 41. I would like to make it clear being a neat question of law that the evidence which is recorded during the course of an inquiry contemplated by Section 329 of the Cr.P.C. cannot be looked into for the purpose of a decision as regards the applicability of Section 84 of the Indian Penal Code. 42. It is significant to note that the enquiry as to the unsoundness of mind and incapacity of the accused under Section 329, Code of Criminal Procedure, relates only to the unsoundness of mind of the accused at the time of enquiry or trial, and not at the time of commission of the offence. 42. It is significant to note that the enquiry as to the unsoundness of mind and incapacity of the accused under Section 329, Code of Criminal Procedure, relates only to the unsoundness of mind of the accused at the time of enquiry or trial, and not at the time of commission of the offence. [See: State of Maharashtra vs. Sindhi v. alias Raman, AIR 1975 SC 1665 ] 43. To earn an exemption under Section 84 of the Indian Penal Code, the accused has to prove insanity at the time of commission of the offending act. The behaviour antecedent, attendant and subsequent to the event may be relevant in finding the mental condition at the time of the event but not those remote in time. 44. The Supreme Court in State of M.P. vs. Ahmadulla [ AIR 1961 SC 998 ] has cited and followed the following observations of Reading C.J.: "Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing that is, the physical nature and quality as distinguished from the moral or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong..” 45. To the similar effect are the observations in Dahyabhai vs. State of Gujart [ AIR 1964 SC 1563 ] and in Bhikari vs. State of U.P. [ AIR 1966 SC 1 ]. 46. Thus, in the course of the trial if the accused wants to take the defence that he being of unsound mind at the time of commission of the offence, and therefore, the act alleged would not constitute an offence, then the burden will be on the accused to establish the same by leading cogent evidence. The accused cannot seek to rely upon the evidence i.e. led or gathered in the course of an inquiry under Section 329 of the Cr.P.C. 47. The above clarification was necessary considering the same to be a neat question of law. 48. With the above, this application is disposed of. Direct service is permitted.